Republic of the Philippines On February 9, 1987, petitioner Alfredo M, de Leon received a
SUPREME COURT Memorandum antedated December 1, 1986 but signed by respondent OIC
Manila
EN BANC
G.R. No. 78059 August 31, 1987
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C.
TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION,
petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the
Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC Mayor
of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO
M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA, ROSENDO S.
PAZ, and TERESITA L. TOLENTINO, respondents.
MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners seeking to
enjoin respondents from replacing them from their respective positions
as Barangay Captain and Barangay Councilmen of Barangay Dolores,
Municipality of Taytay, Province of Rizal.
As required by the Court, respondents submitted their Comment on the
Petition, and petitioner's their Reply to respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De
Leon was elected Barangay Captain and the other petitioners Angel S.
Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and
Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores,
Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the
Barangay Election Act of 1982.
Governor Benjamin Esguerra on February 8, 1987 designating respondent
Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay,
Rizal. The designation made by the OIC Governor was "by authority of the
Minister of Local Government."
Also on February 8, 1987, respondent OIC Governor signed a
Memorandum, antedated December 1, 1986 designating respondents
Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S.
Paz and Teresita L. Tolentino as members of the Barangay Council of the
same Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit of
respondent OIC Governor, the pertinent portions of which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been
appointed as such on March 20, 1986;
That as being OIC Governor of the Province of Rizal and in
the performance of my duties thereof, I among others,
have signed as I did sign the unnumbered memorandum
ordering the replacement of all the barangay officials of
all the barangay(s) in the Municipality of Taytay, Rizal;
That the above cited memorandum dated December 1,
1986 was signed by me personally on February 8,1987;
That said memorandum was further deciminated (sic) to
all concerned the following day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
1
Before us now, petitioners pray that the subject Memoranda of February
8, 1987 be declared null and void and that respondents be prohibited
from taking over their positions of Barangay Captain and Barangay
Councilmen, respectively. Petitioners maintain that pursuant to Section 3
of the Barangay Election Act of 1982 (BP Blg. 222), their terms of office
"shall be six (6) years which shall commence on June 7, 1982 and shall
continue until their successors shall have elected and shall have
qualified," or up to June 7, 1988. It is also their position that with the
ratification of the 1987 Constitution, respondent OIC Governor no longer
has the authority to replace them and to designate their successors.
On the other hand, respondents rely on Section 2, Article III of the
Provisional Constitution, promulgated on March 25, 1986, which
provided:
SECTION 2. All elective and appointive officials and
employees under the 1973 Constitution shall continue in
office until otherwise provided by proclamation or
executive order or upon the designation or appointment
and qualification of their successors, if such appointment
is made within a period of one year from February
25,1986.
By reason of the foregoing provision, respondents contend that the
terms of office of elective and appointive officials were abolished and
that petitioners continued in office by virtue of the aforequoted provision
and not because their term of six years had not yet expired; and that the
provision in the Barangay Election Act fixing the term of office of
Barangay officials to six (6) years must be deemed to have been repealed
for being inconsistent with the aforequoted provision of the Provisional
Constitution.
Examining the said provision, there should be no question that
petitioners, as elective officials under the 1973 Constitution, may continue
in office but should vacate their positions upon the occurrence of any of
the events mentioned. 1
Since the promulgation of the Provisional Constitution, there has been no
proclamation or executive order terminating the term of elective
Barangay officials. Thus, the issue for resolution is whether or not the
designation of respondents to replace petitioners was validly made
during the one-year period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we hold
that February 8, 1977, should be considered as the effective date of
replacement and not December 1,1986 to which it was ante dated, in
keeping with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year deadline,
the aforequoted provision in the Provisional Constitution must be
deemed to have been overtaken by Section 27, Article XVIII of the 1987
Constitution reading.
SECTION 27. This Constitution shall take effect immediately
upon its ratification by a majority of the votes cast in a
plebiscite held for the purpose and shall supersede all
previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By
that date, therefore, the Provisional Constitution must be deemed to
have been superseded. Having become inoperative, respondent OIC
Governor could no longer rely on Section 2, Article III, thereof to
designate respondents to the elective positions occupied by petitioners.
Petitioners must now be held to have acquired security of tenure
specially considering that the Barangay Election Act of 1982 declares it "a
policy of the State to guarantee and promote the autonomy of the
barangays to ensure their fullest development as self-reliant
communities.2 Similarly, the 1987 Constitution ensures the autonomy of
local governments and of political subdivisions of which the barangays
form a part, 3 and limits the President's power to "general supervision"
over local governments. 4 Relevantly, Section 8, Article X of the same
1987 Constitution further provides in part:
2
 Sec. 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall
be three years ...
Until the term of office of barangay officials has been determined by law,
therefore, the term of office of six (6) years provided for in the Barangay
Election Act of 1982 5 should still govern.
Contrary to the stand of respondents, we find nothing inconsistent
between the term of six (6) years for elective Barangay officials and the
1987 Constitution, and the same should, therefore, be considered as still
operative, pursuant to Section 3, Article XVIII of the 1987 Constitution,
reading:
Sec. 3. All existing laws, decrees, executive orders,
proclamations letters of instructions, and other executive
issuances not inconsistent, with this Constitution shall
remain operative until amended, repealed or revoked.
WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on
February 8, 1987 designating respondents as the Barangay Captain and
Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal,
are both declared to be of no legal force and effect; and (2) the Writ of
Prohibition is granted enjoining respondents perpetually from proceeding
with the ouster/take-over of petitioners' positions subject of this Petition.
Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin
and Cortes, JJ., concur.
Separate Opinions
TEEHANKEE, CJ., concurring:
The main issue resolved in the judgment at bar is whether the 1987
Constitution took effect on February 2, 1987, the date that the plebiscite
for its ratification was held or whether it took effect on February 11, 1987,
the date its ratification was proclaimed per Proclamation No. 58 of the
President of the Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds
that by virtue of the provision of Article XVIII, Section 27 of the 1987
Constitution that it "shall take effect immediately upon its ratification by
a majority of the votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its ratification in
the plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be deemed to
"take effect on the date its ratification shall have been ascertained and
not at the time the people cast their votes to approve or reject it." This
view was actually proposed at the Constitutional Commission
deliberations, but was withdrawn by its proponent in the face of the
"overwhelming" contrary view that the Constitution "will be effective on
the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional
Commission fully supports the Court's judgment. It shows that the clear,
unequivocal and express intent of the Constitutional Conunission in
unanimously approving (by thirty-five votes in favor and none against)
the aforequoted Section 27 of Transitory Article XVIII of the 1987
Constitution was that "the act of ratification is the act of voting by the
people. So that is the date of the ratification" and that "the canvass
thereafter [of the votes] is merely the mathematical confirmation of what
was done during the date of the plebiscite and the proclamation of the
President is merely the official confirmatory declaration of an act which
was actually done by the Filipino people in adopting the Constitution
when they cast their votes on the date of the plebiscite."
3
The record of the deliberations and the voting is reproduced
hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a
vote the original formulation of the committee as indicated
in Section 12, unless there are other commissioners who
would like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu
thereof insert the following-. "THE PROCLAMATION BY
THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the
last line, after "constitutions," add the following: "AND
THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If
Commissioner Davide is going to propose an additional
sentence, the committee would suggest that we take up
first his amendment to the first sentence as originally
formulated. We are now ready to comment on that
proposed amendment.
The proposed amendment would be to delete the words
"its ratification and in lieu thereof insert the words "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN
RATIFIED." And the second amendment would be: After
the word "constitutions," add the words" AND THEIR
AMENDMENTS,"
The committee accepts the first proposed amendment.
However, we regret that we cannot accept the second
proposed amendment after the word "constitutions"
because the committee feels that when we talk of all
previous Constitutions, necessarily it includes "AND THEIR
AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the
second. But, Madam President, may I request that I be
allowed to read the second amendment so the
Commission would be able to appreciate the change in
the first.
MR. MAAMBONG. Yes, Madam President, we can now do
that.
MR. DAVIDE. The second sentence will read: "THE
PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS
FOLLOWING THE COMPLETION OF THE CANVASS BY THE
COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH
PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring
with our chairman, the committee feels that the second
proposed amendment in the form of a new sentence
would not be exactly necessary and the committee feels
that it would be too much for us to impose a time frame
on the President to make the proclamation. As we would
recall, Madam President, in the approved Article on the
Executive, there is a provision which says that the
President shall make certain that all laws shall be faithfully
complied. When we approve this first sentence, and it
says that there will be a proclamation by the President
that the Constitution has been ratified, the President will
naturally comply with the law in accordance with the
provisions in the Article on the Executive which we have
cited. It would be too much to impose on the President a
time frame within which she will make that declaration. It
would be assumed that the President would immediately
do that after the results shall have been canvassed by the
COMELEC.
4
Therefore, the committee regrets that it cannot accept
the second sentence which the Gentleman is proposing,
Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the
assumption that there will be an immediate proclamation
of the results by the President.
MR. MAAMBONG. With that understanding, Madam
President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its
acceptance of the amendment which makes the
effectivity of the new Constitution dependent upon the
proclamation of the President. The effectivity of the
Constitution should commence on the date of the
ratification, not on the date of the proclamation of the
President. What is confusing, I think, is what happened in
1976 when the amendments of 1976 were ratified. In that
particular case, the reason the amendments of 1976 were
effective upon the proclamation of the President was that
the draft presented to the people said that the
amendment will be effective upon the proclamation made
by the President. I have a suspicion that was put in there
precisely to give the President some kind of leeway on
whether to announce the ratification or not. Therefore,
we should not make this dependent on the action of the
President since this will be a manifestation of the act of the
people to be done under the supervision of the COMELEC
and it should be the COMELEC who should make the
announcement that, in fact, the votes show that the
Constitution was ratified and there should be no need to
wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few
clarificatory questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date
has to be fixed as to exactly when the Constitution is
supposed to be ratified.
FR. BERNAS. I would say that the ratification of the
Constitution is on the date the votes were supposed to have
been cast.
MR. MAAMBONG. Let us go to the mechanics of the
whole thing, Madam President. We present the
Constitution to a plebiscite, the people exercise their right
to vote, then the votes are canvassed by the Commission
on Elections. If we delete the suggested amendment
which says: "THE PROCLAMATION BY THE PRESIDENT
THAT IT HAS BEEN RATIFIED," what would be, in clear
terms, the date when the Constitution is supposed to be
ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots.
if the President were to say that the plebiscite would be
held, for instance, on January 19, 1987, then the date for
the effectivity of the new Constitution would be January
19, 1987.
MR. MAAMBONG. In other words, it would not depend on
the actual issuance of the results by the Commission on
Elections which will be doing the canvass? That is
immaterial Madam President
5
FR. BERNAS. It would not, Madam President, because
"ratification" is the act of saying "yes" is done when one
casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself,
Madam President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner
Bernas, we would like to know from the proponent,
Commissioner Davide, if he is insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the
amendment because I cannot subscribe to the view of
Commissioner Bernas, that the date of the ratification is
reckoned from the date of the casting of the ballots. That
cannot be the date of reckoning because it is a plebiscite
all over the country. We do not split the moment of
casting by each of the voters. Actually and technically
speaking, it would be all right if it would be upon the
announcement of the results of the canvass conducted by
the COMELEC or the results of the plebiscite held all over
the country. But it is necessary that there be a body which
will make the formal announcement of the results of the
plebiscite. So it is either the President or the COMELEC
itself upon the completion of the canvass of the results of
the plebiscite, and I opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to
disagree with Commissioner Davide. I support the stand
of Commissioner Bernas because it is really the date of the
casting of the "yes" votes that is the date of the ratification
of the Constitution The announcement merely confirms the
ratification even if the results are released two or three
days after. I think it is a fundamental principle in political
law, even in civil law, because an announcement is a mere
confirmation The act of ratification is the act of voting by
the people. So that is the date of the ratification. If there
should be any need for presidential proclamation, that
proclamation will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to
contribute?
MR. REGALADO. Madam President, I was precisely going
to state the same support for Commissioner Bernas,
because the canvass thereafter is merely the
mathematical confirmation of what was done during the
date of the plebiscite and the proclamation of the
President is merely the official confirmatory declaration of
an act which was actually done by the Filipino people in
adopting the Constitution when they cast their votes on the
date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment
because we have to fix a date for the effectivity of the
Constitution. Suppose the announcement is delayed by,
say, 10 days or a month, what happens to the obligations
and rights that accrue upon the approval of the
Constitution? So I think we must have a definite date. I
am, therefore, in favor of the Davide amendment.
6
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner,
would there be a necessity for the Commission on
Elections to declare the results of the canvass?
FR. BERNAS. There would be because it is the Commission
on Elections which makes the official announcement of the
results.
MR. MAAMBONG. My next question which is the final one
is: After the Commision on Elections has declared the
results of the canvass, will there be a necessity for the
President to make a proclamation of the results of the
canvass as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity,
Madam President.
MR. MAAMBONG. In other words, the President may or
may not make the proclamation whether the Constitution
has been ratified or not.
FR. BERNAS. I would say that the proclamation made by
the President would be immaterial because under the law,
the administration of all election laws is under an
independent Commission on Elections. It is the
Commission on Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may
make the proclamation.
FR. BERNAS. Yes, the President may. And if what he says
contradicts what the Commission on Elections says, it
would have no effect. I would only add that when we say
that the date of effectivity is on the day of the casting of
the votes, what we mean is that the Constitution takes
effect on every single minute and every single second of
that day, because the Civil Code says a day has 24
hours.So that even if the votes are cast in the morning, the
Constitution is really effective from the previous midnight.
So that when we adopted the new rule on citizenship, the
children of Filipino mothers or anybody born on the date
of effectivity of the 1973 Constitution, which is January 17,
1973, are natural-born citizens, no matter what time of
day or night.
MR. MAAMBONG. Could we, therefore, safely say that
whatever date is the publication of the results of the
canvass by the COMELEC retroacts to the date of the
plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for
having a definite date. I think it is precisely the proposal of
Commissioner Bernas which speaks of the date (of
ratification that would have a definite date, because there
would be no definite date if we depend upon the canvassing
by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
7
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the
plebiscite, be it the COMELEC or the President, would
announce that a majority of the votes cast on a given date
was in favor of the Constitution. And that is the date
when the Constitution takes effect, apart from the fact
that the provision on the drafting or amendment of the
Constitution provides that a constitution becomes
effective upon ratification by a majority of the votes cast,
although I would not say from the very beginning of the
date of election because as of that time it is impossible to
determine whether there is a majority. At the end of the
day of election or plebiscite, the determination is made as
of that time-the majority of the votes cast in a plebiscite
held on such and such a date. So that is the time when the
new Constitution will be considered ratified and, therefore,
effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the
proposed amendment of Commissioner Davide and I
support the view of Commissioner Bernas and the others
because the ratification of the Constitution is on the date
the people, by a majority vote, have cast their votes in
favor of the Constitution. Even in civil law, if there is a
contract, say, between an agent and a third person and
that contract is confirmed or ratified by the principal, the
validity does not begin on the date of ratification but it
retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should
retroact to the date that the people have cast their
affirmative votes in favor of the Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more
Commissioner Davide if he is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming
tyranny of the opinion that it will be effective on the very
day of the plebiscite, I am withdrawing my amendment on
the assumption that any of the following bodies the
Office of the President or the COMELEC will make the
formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote
on the original provision as stated by the committee.
MR. MAAMBONG. The committee will read again the
formulation indicated in the original committee report as
Section 12.
This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite
called for the purpose and shall supersede all previous
Constitutions.
We ask for a vote, Madam President.
VOTING
THE PRESIDENT. As many as are in favor, please raise their
hand. (Several Members raised their hands.)
As many as are against, please raise their hand. (No
Member raised his hand.)
The results show 35 votes in favor and none against; Section
12 is approved. 2
8
The Court next holds as a consequence of its declaration at bar that the
Constitution took effect on the date of its ratification in the plebiscite
held on February 2, 1987, that: (1) the Provisional Constitution
promulgated on March 25, 1986 must be deemed to have been
superseded by the 1987 Constitution on the same date February 2, 1987
and (2) by and after said date, February 2, 1987, absent any saying clause
to the contrary in the Transitory Article of the Constitution, respondent
OIC Governor could no longer exercise the power to replace petitioners in
their positions as Barangay Captain and Councilmen. Hence, the
attempted replacement of petitioners by respondent OIC Governor's
designation on February 8, 1987 of their successors could no longer
produce any legal force and effect. While the Provisional Constitution
provided for a one-year period expiring on March 25, 1987 within which
the power of replacement could be exercised, this period was shortened
by the ratification and effectivity on February 2, 1987 of the Constitution.
Had the intention of the framers of the Constitution been otherwise, they
would have so provided for in the Transitory Article, as indeed they
provided for multifarious transitory provisions in twenty six sections of
Article XVIII, e.g. extension of the six-year term of the incumbent
President and Vice-President to noon of June 30, 1992 for purposes of
synchronization of elections, the continued exercise of legislative powers
by the incumbent President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the
appointments of some seven Court of Appeals Justices, 71 provincial
fiscals and 55 city fiscals reported extended (by) the President on
February 2, 1987 . . . could be open to serious questions," in view of the
provisions of Sections 8 (1) and 9, Article VIII of the Constitution which
require prior endorsement thereof by the Judicial and Bar Council created
under the Constitution. It should be stated for the record that the
reported date of the appointments, February 2, 1987, is incorrect. The
official records of the Court show that the appointments of the seven
Court of Appeals Justices were transmitted to this Court on February 1,
1987 and they were all appointed on or before January 31, 1987.3
(Similarly, the records of the Department of Justice likewise show that
the appointment papers of the last batch of provincial and city fiscals
signed by the President in completion of the reorganization of the
prosecution service were made on January 31, 1987 and transmitted to
the Department on February 1, 1987.) It is also a matter of record that
since February 2, 1987, no appointments to the Judiciary have been
extended by the President, pending the constitution of the Judicial and
Bar Council, indicating that the Chief Executive has likewise considered
February 2, 1987 as the effective date of the Constitution, as now
expressly declared by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her
point with more telling effect than the tones of thunder. She has written
another persuasive opinion, and I am delighted to concur. I note that it in
effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas
cases, where I submitted that the local OICs may no longer be summarily
replaced, having acquired security of tenure under the new Constitution.
Our difference is that whereas I would make that right commence on
February 25, 1987, after the deadline set by the Freedom Constitution,
Justice Herrera would opt for February 2, 1987, when the new
Constitution was ratified. I yield to that better view and agree with her
ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III
of the Provisional Constitution with respect to the tenure of government
functionaries, as follows:
SECTION 2. All elective and appointive officials and
employees under the 1973 Constitution shall continue in
office until otherwise provided by proclamation or
executive order or upon the designation or appointment
and qualification of their successors, if such appointment
is made within a period of one year from February 25,
1986.
9
was cut short by the ratification of the 1987 Constitution, I entertain
serious doubts whether or not that cut-off period began on February 2,
1987, the date of the plebiscite held to approve the new Charter. To my
mind the 1987 constitution took effect on February 11, 1987, the date the
same was proclaimed ratified pursuant to Proclamation No. 58 of the
President of the Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately
upon its ratification by a majority of the votes cast in a
plebiscite held for the purpose and shall supersede all
previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the
date its ratification shall have been ascertained, and not at the time the
people cast their votes to approve or reject it. For it cannot be logically
said that Constitution was ratified during such a plebiscite, when the will
of the people as of that time, had not, and could not have been, vet
determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the
government performed acts that would have been valid under the
Provisional Constitution but would otherwise have been void under the
1987 Charter. I recall, in particular, the appointments of some seven Court
of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President
reportedly extended on February 2, 1987. 1 Under Sections 8 (1) and 9,
Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created
under the supervision of the Supreme Court composed of
the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex oficio
Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court,
and a representative of the private sector.
xxx xxx xxx
Sec. 9. The Members of the Supreme Court and judges of
lower courts shall be appointed by the President from a
list of at least three nominees prepared by the Judicial
and Bar Council for every vacancy, Such appointments
need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the
Constitution as well as the amendments thereto from the date it is
proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in
force and effect on January 17, 1973, the date Proclamation No. 1102,
"Announcing the Ratification by the Filipino People of the Constitution
Proposed by the 1971 Constitutional Convention," was issued, although
Mr. Justice, now Chief Justice, Teehankee would push its effectivity date
further to April 17, 1973, the date our decision in Javellana v. Executive
Secretary, 3 became final. And this was so notwithstanding Section 16,
Article XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately
upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and, except as herein
provided, shall supersede the Constitution of nineteen-
hundred and thirty- five and all amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation
no. 1595, proclaiming the ratification of the 1976 amendments submitted
10
in the plebiscite of October 16- 17, 1976. The Proclamation states, inter
alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the
amendments embodied in this certificate as duly ratified by the Filipino
people in the referendum- plebiscite held Oct. 16-17, 1976 and are
therefore effective and in full force and effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976
amendments.
These amendments shall take effect after the incumbent
President shall have proclaimed that they have been
ratified by a majority of the votes cast in the referendum-
plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959,
"Proclaiming the Ratification by the Filipino People of the Amendments
of Section 7, Article X of the Constitution" (lengthening the terms of
office of judges and justices). The Proclamation provides:
[t]he above-quoted amendment has been duly ratified by
a majority of the votes cast in the plebiscite held, together
with the election for local officials, on January 30, 1980,
and that said amendment is hereby declared to take
effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979,
the proposed amendment shall take effect on the date the incumbent
President/Prime Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the
Ratification in the Plebiscite of April 7, 1981 of the Amendments to the
Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them
Therefore Effective and in Full Force and Effect." The Proclamation, in
declaring the said amendments duly approved, further declared them
"[e]ffective and in full force and in effect as of the date of this
Proclamation," It shall be noted, in this connection, that under
Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular
Session, Sitting as a Constituent Assembly, which parented these
amendments, the same:
. . .shall become valid as part of the Constitution when
approved by a majority of the votes cast in a plebiscite to
be held pursuant to Section 2, Article XVI of the
Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the
Filipino People, for Ratification or Rejection, the Amendment to the
Constitution of the Philippines, Proposed by the Batasang Pambansa,
Sitting as a Constituent Assembly, in its Resolutions Numbered Three,
Two, and One, and to Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad
canvass and proclaim the result of the plebiscite using the
certificates submitted to it, duly authenticated and
certified by the Board of Canvassers of each province or
city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in
the Plebiscite of January 27, 1984, of the Amendments to the Constitution
Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112
and 113." It states that the amendments:
....are therefore effective and in full force and effect as of
the date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and
112 and Section 9, Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the date
the President of the Philippines shall proclaim that they
have been ratified by a majority of the votes cast in the
11
 plebiscite held for the purpose, but not later than three
months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the
Constitution when approved by a majority of the votes
cast in an election/plebiscite at which it is submitted to
the people for their ratification pursuant to Section 2 of
Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon
proclamation of their ratification and not at the time of the plebiscite is a
view that is not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the
March 11, 1947 plebiscite called pursuant to Republic Act No. 73 and the
Resolution of Both Houses (of Congress) adopted on September 18, 1946,
was adopted on April 9,1947. The April 9, 1947 Resolution makes no
mention of a retroactive application.
Accordingly, when the incumbent President (Mrs. Corazon C. Aquino)
proclaimed on February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines
adopted by the Constitutional Commission of 1986,
including the Ordinance appended thereto, has been duly
ratified by the Filipino people and is therefore effective
and in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold
that it took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in
passing, that the new Charter was ratified on February 2, 1987, does not
in any way weaken this dissent. As I stated, the remark was said in
passing-we did not resolve the case on account of a categorical holding
that the 1987 Constitution came to life on February 2, 1987. In any event,
if we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above,
that the challenged dismissals done on February 8, 1987 were valid, the
1987 Constitution not being then as yet in force.
Separate Opinions
TEEHANKEE, CJ., concurring:
The main issue resolved in the judgment at bar is whether the 1987
Constitution took effect on February 2, 1987, the date that the plebiscite
for its ratification was held or whether it took effect on February 11, 1987,
the date its ratification was proclaimed per Proclamation No. 58 of the
President of the Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds
that by virtue of the provision of Article XVIII, Section 27 of the 1987
Constitution that it "shall take effect immediately upon its ratification by
a majority of the votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its ratification in
the plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be deemed to
"take effect on the date its ratification shall have been ascertained and
not at the time the people cast their votes to approve or reject it." This
view was actually proposed at the Constitutional Commission
deliberations, but was withdrawn by its proponent in the face of the
"overwhelming" contrary view that the Constitution "will be effective on
the very day of the plebiscite."
12
The record of the proceedings and debates of the Constitutional
Commission fully supports the Court's judgment. It shows that the clear,
unequivocal and express intent of the Constitutional Conunission in
unanimously approving (by thirty-five votes in favor and none against)
the aforequoted Section 27 of Transitory Article XVIII of the 1987
Constitution was that "the act of ratification is the act of voting by the
people. So that is the date of the ratification" and that "the canvass
thereafter [of the votes] is merely the mathematical confirmation of what
was done during the date of the plebiscite and the proclamation of the
President is merely the official confirmatory declaration of an act which
was actually done by the Filipino people in adopting the Constitution
when they cast their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced
hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a
vote the original formulation of the committee as indicated
in Section 12, unless there are other commissioners who
would like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu
thereof insert the following-. "THE PROCLAMATION BY
THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the
last line, after "constitutions," add the following: "AND
THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If
Commissioner Davide is going to propose an additional
sentence, the committee would suggest that we take up
first his amendment to the first sentence as originally
formulated. We are now ready to comment on that
proposed amendment.
The proposed amendment would be to delete the words
"its ratification and in lieu thereof insert the words "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN
RATIFIED." And the second amendment would be: After
the word "constitutions," add the words" AND THEIR
AMENDMENTS,"
The committee accepts the first proposed amendment.
However, we regret that we cannot accept the second
proposed amendment after the word "constitutions"
because the committee feels that when we talk of all
previous Constitutions, necessarily it includes "AND THEIR
AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the
second. But, Madam President, may I request that I be
allowed to read the second amendment so the
Commission would be able to appreciate the change in
the first.
MR. MAAMBONG. Yes, Madam President, we can now do
that.
MR. DAVIDE. The second sentence will read: "THE
PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS
FOLLOWING THE COMPLETION OF THE CANVASS BY THE
COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH
PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring
with our chairman, the committee feels that the second
proposed amendment in the form of a new sentence
would not be exactly necessary and the committee feels
that it would be too much for us to impose a time frame
13
on the President to make the proclamation. As we would
recall, Madam President, in the approved Article on the
Executive, there is a provision which says that the
President shall make certain that all laws shall be faithfully
complied. When we approve this first sentence, and it
says that there will be a proclamation by the President
that the Constitution has been ratified, the President will
naturally comply with the law in accordance with the
provisions in the Article on the Executive which we have
cited. It would be too much to impose on the President a
time frame within which she will make that declaration. It
would be assumed that the President would immediately
do that after the results shall have been canvassed by the
COMELEC.
Therefore, the committee regrets that it cannot accept
the second sentence which the Gentleman is proposing,
Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the
assumption that there will be an immediate proclamation
of the results by the President.
MR. MAAMBONG. With that understanding, Madam
President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its
acceptance of the amendment which makes the
effectivity of the new Constitution dependent upon the
proclamation of the President. The effectivity of the
Constitution should commence on the date of the
ratification, not on the date of the proclamation of the
President. What is confusing, I think, is what happened in
1976 when the amendments of 1976 were ratified. In that
particular case, the reason the amendments of 1976 were
effective upon the proclamation of the President was that
the draft presented to the people said that the
amendment will be effective upon the proclamation made
by the President. I have a suspicion that was put in there
precisely to give the President some kind of leeway on
whether to announce the ratification or not. Therefore,
we should not make this dependent on the action of the
President since this will be a manifestation of the act of the
people to be done under the supervision of the COMELEC
and it should be the COMELEC who should make the
announcement that, in fact, the votes show that the
Constitution was ratified and there should be no need to
wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few
clarificatory questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date
has to be fixed as to exactly when the Constitution is
supposed to be ratified.
FR. BERNAS. I would say that the ratification of the
Constitution is on the date the votes were supposed to have
been cast.
MR. MAAMBONG. Let us go to the mechanics of the
whole thing, Madam President. We present the
Constitution to a plebiscite, the people exercise their right
to vote, then the votes are canvassed by the Commission
on Elections. If we delete the suggested amendment
which says: "THE PROCLAMATION BY THE PRESIDENT
THAT IT HAS BEEN RATIFIED," what would be, in clear
14
terms, the date when the Constitution is supposed to be
ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots.
if the President were to say that the plebiscite would be
held, for instance, on January 19, 1987, then the date for
the effectivity of the new Constitution would be January
19, 1987.
MR. MAAMBONG. In other words, it would not depend on
the actual issuance of the results by the Commission on
Elections which will be doing the canvass? That is
immaterial Madam President
FR. BERNAS. It would not, Madam President, because
"ratification" is the act of saying "yes" is done when one
casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself,
Madam President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner
Bernas, we would like to know from the proponent,
Commissioner Davide, if he is insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the
amendment because I cannot subscribe to the view of
Commissioner Bernas, that the date of the ratification is
reckoned from the date of the casting of the ballots. That
cannot be the date of reckoning because it is a plebiscite
all over the country. We do not split the moment of
casting by each of the voters. Actually and technically
speaking, it would be all right if it would be upon the
announcement of the results of the canvass conducted by
the COMELEC or the results of the plebiscite held all over
the country. But it is necessary that there be a body which
will make the formal announcement of the results of the
plebiscite. So it is either the President or the COMELEC
itself upon the completion of the canvass of the results of
the plebiscite, and I opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to
disagree with Commissioner Davide. I support the stand
of Commissioner Bernas because it is really the date of the
casting of the "yes" votes that is the date of the ratification
of the Constitution The announcement merely confirms the
ratification even if the results are released two or three
days after. I think it is a fundamental principle in political
law, even in civil law, because an announcement is a mere
confirmation The act of ratification is the act of voting by
the people. So that is the date of the ratification. If there
should be any need for presidential proclamation, that
proclamation will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to
contribute?
MR. REGALADO. Madam President, I was precisely going
to state the same support for Commissioner Bernas,
because the canvass thereafter is merely the
mathematical confirmation of what was done during the
date of the plebiscite and the proclamation of the
President is merely the official confirmatory declaration of
an act which was actually done by the Filipino people in
15
adopting the Constitution when they cast their votes on the
date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment
because we have to fix a date for the effectivity of the
Constitution. Suppose the announcement is delayed by,
say, 10 days or a month, what happens to the obligations
and rights that accrue upon the approval of the
Constitution? So I think we must have a definite date. I
am, therefore, in favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner,
would there be a necessity for the Commission on
Elections to declare the results of the canvass?
FR. BERNAS. There would be because it is the Commission
on Elections which makes the official announcement of the
results.
MR. MAAMBONG. My next question which is the final one
is: After the Commision on Elections has declared the
results of the canvass, will there be a necessity for the
President to make a proclamation of the results of the
canvass as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity,
Madam President.
MR. MAAMBONG. In other words, the President may or
may not make the proclamation whether the Constitution
has been ratified or not.
FR. BERNAS. I would say that the proclamation made by
the President would be immaterial because under the law,
the administration of all election laws is under an
independent Commission on Elections. It is the
Commission on Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may
make the proclamation.
FR. BERNAS. Yes, the President may. And if what he says
contradicts what the Commission on Elections says, it
would have no effect. I would only add that when we say
that the date of effectivity is on the day of the casting of
the votes, what we mean is that the Constitution takes
effect on every single minute and every single second of
that day, because the Civil Code says a day has 24 hours.
So that even if the votes are cast in the morning, the
Constitution is really effective from the previous midnight.
So that when we adopted the new rule on citizenship, the
children of Filipino mothers or anybody born on the date
of effectivity of the 1973 Constitution, which is January 17,
1973, are natural-born citizens, no matter what time of
day or night.
MR. MAAMBONG. Could we, therefore, safely say that
whatever date is the publication of the results of the
canvass by the COMELEC retroacts to the date of the
plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
16
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for
having a definite date. I think it is precisely the proposal of
Commissioner Bernas which speaks of the date (of
ratification that would have a definite date, because there
would be no definite date if we depend upon the canvassing
by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the
plebiscite, be it the COMELEC or the President, would
announce that a majority of the votes cast on a given date
was in favor of the Constitution. And that is the date
when the Constitution takes effect, apart from the fact
that the provision on the drafting or amendment of the
Constitution provides that a constitution becomes
effective upon ratification by a majority of the votes cast,
although I would not say from the very beginning of the
date of election because as of that time it is impossible to
determine whether there is a majority. At the end of the
day of election or plebiscite, the determination is made as
of that time-the majority of the votes cast in a plebiscite
held on such and such a date. So that is the time when the
new Constitution will be considered ratified and, therefore,
effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the
proposed amendment of Commissioner Davide and I
support the view of Commissioner Bernas and the others
because the ratification of the Constitution is on the date
the people, by a majority vote, have cast their votes in
favor of the Constitution. Even in civil law, if there is a
contract, say, between an agent and a third person and
that contract is confirmed or ratified by the principal, the
validity does not begin on the date of ratification but it
retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should
retroact to the date that the people have cast their
affirmative votes in favor of the Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more
Commissioner Davide if he is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming
tyranny of the opinion that it will be effective on the very
day of the plebiscite, I am withdrawing my amendment on
the assumption that any of the following bodies the
Office of the President or the COMELEC will make the
formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote
on the original provision as stated by the committee.
MR. MAAMBONG. The committee will read again the
formulation indicated in the original committee report as
Section 12.
17
 This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite
called for the purpose and shall supersede all previous
Constitutions.
We ask for a vote, Madam President.
VOTING
THE PRESIDENT. As many as are in favor, please raise their
hand. (Several Members raised their hands.)
As many as are against, please raise their hand. (No
Member raised his hand.)
The results show 35 votes in favor and none against; Section
12 is approved. 2
The Court next holds as a consequence of its declaration at bar that the
Constitution took effect on the date of its ratification in the plebiscite
held on February 2, 1987, that: (1) the Provisional Constitution
promulgated on March 25, 1986 must be deemed to have been
superseded by the 1987 Constitution on the same date February 2, 1987
and (2) by and after said date, February 2, 1987, absent any saying clause
to the contrary in the Transitory Article of the Constitution, respondent
OIC Governor could no longer exercise the power to replace petitioners in
their positions as Barangay Captain and Councilmen. Hence, the
attempted replacement of petitioners by respondent OIC Governor's
designation on February 8, 1987 of their successors could no longer
produce any legal force and effect. While the Provisional Constitution
provided for a one-year period expiring on March 25, 1987 within which
the power of replacement could be exercised, this period was shortened
by the ratification and effectivity on February 2, 1987 of the Constitution.
Had the intention of the framers of the Constitution been otherwise, they
would have so provided for in the Transitory Article, as indeed they
provided for multifarious transitory provisions in twenty six sections of
Article XVIII, e.g. extension of the six-year term of the incumbent
President and Vice-President to noon of June 30, 1992 for purposes of
synchronization of elections, the continued exercise of legislative powers
by the incumbent President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the
appointments of some seven Court of Appeals Justices, 71 provincial
fiscals and 55 city fiscals reported extended (by) the President on
February 2, 1987 . . . could be open to serious questions," in view of the
provisions of Sections 8 (1) and 9, Article VIII of the Constitution which
require prior endorsement thereof by the Judicial and Bar Council created
under the Constitution. It should be stated for the record that the
reported date of the appointments, February 2, 1987, is incorrect. The
official records of the Court show that the appointments of the seven
Court of Appeals Justices were transmitted to this Court on February 1,
1987 and they were all appointed on or before January 31, 1987.3
(Similarly, the records of the Department of Justice likewise show that
the appointment papers of the last batch of provincial and city fiscals
signed by the President in completion of the reorganization of the
prosecution service were made on January 31, 1987 and transmitted to
the Department on February 1, 1987.) It is also a matter of record that
since February 2, 1987, no appointments to the Judiciary have been
extended by the President, pending the constitution of the Judicial and
Bar Council, indicating that the Chief Executive has likewise considered
February 2, 1987 as the effective date of the Constitution, as now
expressly declared by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her
point with more telling effect than the tones of thunder. She has written
another persuasive opinion, and I am delighted to concur. I note that it in
effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas
cases, where I submitted that the local OICs may no longer be summarily
replaced, having acquired security of tenure under the new Constitution.
Our difference is that whereas I would make that right commence on
February 25, 1987, after the deadline set by the Freedom Constitution,
Justice Herrera would opt for February 2, 1987, when the new
18
Constitution was ratified. I yield to that better view and agree with her
ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III
of the Provisional Constitution with respect to the tenure of government
functionaries, as follows:
SECTION 2. All elective and appointive officials and
employees under the 1973 Constitution shall continue in
office until otherwise provided by proclamation or
executive order or upon the designation or appointment
and qualification of their successors, if such appointment
is made within a period of one year from February 25,
1986.
was cut short by the ratification of the 1987 Constitution, I entertain
serious doubts whether or not that cut-off period began on February 2,
1987, the date of the plebiscite held to approve the new Charter. To my
mind the 1987 constitution took effect on February 11, 1987, the date the
same was proclaimed ratified pursuant to Proclamation No. 58 of the
President of the Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately
upon its ratification by a majority of the votes cast in a
plebiscite held for the purpose and shall supersede all
previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the
date its ratification shall have been ascertained, and not at the time the
people cast their votes to approve or reject it. For it cannot be logically
said that Constitution was ratified during such a plebiscite, when the will
of the people as of that time, had not, and could not have been, vet
determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the
government performed acts that would have been valid under the
Provisional Constitution but would otherwise have been void under the
1987 Charter. I recall, in particular, the appointments of some seven Court
of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President
reportedly extended on February 2, 1987. 1 Under Sections 8 (1) and 9,
Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created
under the supervision of the Supreme Court composed of
the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex oficio
Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court,
and a representative of the private sector.
xxx xxx xxx
2Sec. 9. The Members of the Supreme Court and judges of
lower courts shall be appointed by the President from a
list of at least three nominees prepared by the Judicial
and Bar Council for every vacancy, Such appointments
need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
19
Since 1973, moreover, we have invariably reckoned the effectivity of the
Constitution as well as the amendments thereto from the date it is
proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in
force and effect on January 17, 1973, the date Proclamation No. 1102,
"Announcing the Ratification by the Filipino People of the Constitution
Proposed by the 1971 Constitutional Convention," was issued, although
Mr. Justice, now Chief Justice, Teehankee would push its effectivity date
further to April 17, 1973, the date our decision in Javellana v. Executive
Secretary, 3 became final. And this was so notwithstanding Section 16,
Article XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately
upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and, except as herein
provided, shall supersede the Constitution of nineteen-
hundred and thirty- five and all amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation
no. 1595, proclaiming the ratification of the 1976 amendments submitted
in the plebiscite of October 16- 17, 1976. The Proclamation states, inter
alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the
amendments embodied in this certificate as duly ratified by the Filipino
people in the referendum plebiscite held Oct. 16-17, 1976 and are
therefore effective and in full force and effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976
amendments.
These amendments shall take effect after the incumbent
President shall have proclaimed that they have been
ratified by a majority of the votes cast in the referendum-
plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959,
"Proclaiming the Ratification by the Filipino People of the Amendments
of Section 7, Article X of the Constitution" (lengthening the terms of
office of judges and justices). The Proclamation provides:
[t]he above-quoted amendment has been duly ratified by
a majority of the votes cast in the plebiscite held, together
with the election for local officials, on January 30, 1980,
and that said amendment is hereby declared to take
effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979,
the proposed amendment shall take effect on the date the incumbent
President/Prime Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the
Ratification in the Plebiscite of April 7, 1981 of the Amendments to the
Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them
Therefore Effective and in Full Force and Effect." The Proclamation, in
declaring the said amendments duly approved, further declared them
"[e]ffective and in full force and in effect as of the date of this
Proclamation," It shall be noted, in this connection, that under
Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular
Session, Sitting as a Constituent Assembly, which parented these
amendments, the same:
... shall become valid as part of the Constitution when
approved by a majority of the votes cast in a plebiscite to
be held pursuant to Section 2, Article XVI of the
Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the
Filipino People, for Ratification or Rejection, the Amendment to the
Constitution of the Philippines, Proposed by the Batasang Pambansa,
Sitting as a Constituent Assembly, in its Resolutions Numbered Three,
Two, and One, and to Appropriate Funds Therefore," provides, as follows:
20
 SEC. 7. The Commission on Elections, sitting en banc, shad
canvass and proclaim the result of the plebiscite using the
certificates submitted to it, duly authenticated and
certified by the Board of Canvassers of each province or
city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in
the Plebiscite of January 27, 1984, of the Amendments to the Constitution
Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112
and 113." It states that the amendments:
....are therefore effective and in full force and effect as of
the date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and
112 and Section 9, Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the date
the President of the Philippines shall proclaim that they
have been ratified by a majority of the votes cast in the
plebiscite held for the purpose, but not later than three
months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when
approved by a majority of the votes cast in an election/plebiscite at which
it is submitted to the people for their ratification pursuant to Section 2 of
Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon
proclamation of their ratification and not at the time of the plebiscite is a
view that is not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the
March 11, 1947 plebiscite called pursuant to Republic Act No. 73 and the
Resolution of Both Houses (of Congress) adopted on September 18, 1946,
was adopted on April 9,1947. The April 9, 1947 Resolution makes no
mention of a retroactive application. Accordingly, when the incumbent
President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at
Malacanang Palace:
... that the Constitution of the Republic of the Philippines
adopted by the Constitutional Commission of 1986,
including the Ordinance appended thereto, has been duly
ratified by the Filipino people and is therefore effective
and in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold
that it took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in
passing, that the new Charter was ratified on February 2, 1987, does not
in any way weaken this dissent. As I stated, the remark was said in
passing-we did not resolve the case on account of a categorical holding
that the 1987 Constitution came to life on February 2, 1987. In any event,
if we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above,
that the challenged dismissals done on February 8, 1987 were valid, the
1987 Constitution not being then as yet in force.
Footnotes
21
 Republic of the Philippines the plebiscite for the ratification of the constitutional amendments
SUPREME COURT proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of Congress
Manila of the Philippines, approved on March 16, 1967; (b) the Director of
Printing from printing ballots, pursuant to said Act and Resolutions; and
EN BANC (c) the Auditor General from passing in audit any disbursement from the
appropriation of funds made in said Republic Act No. 4913; and
G.R. No. L-28196 November 9, 1967
2) declaring said Act unconstitutional and void.
RAMON A. GONZALES, petitioner,
vs. The main facts are not disputed. On March 16, 1967, the Senate and the
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR House of Representatives passed the following resolutions:
GENERAL, respondents.
1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5,
G.R. No. L-28224 November 9, 1967 Article VI, of the Constitution of the Philippines, be amended so as to
increase the membership of the House of Representatives from a
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner, maximum of 120, as provided in the present Constitution, to a maximum
vs. of 180, to be apportioned among the several provinces as nearly as may
COMMISSION ON ELECTIONS, respondent. be according to the number of their respective inhabitants, although each
province shall have, at least, one (1) member;
No. 28196:
Ramon A. Gonzales for and in his own behalf as petitioner. 2. R. B. H. No. 2, calling a convention to propose amendments to said
Juan T. David as amicus curiae Constitution, the convention to be composed of two (2) elective
Office of the Solicitor General for respondents. delegates from each representative district, to be "elected in the general
elections to be held on the second Tuesday of November, 1971;" and
No. 28224:
Salvador Araneta for petitioner. 3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same
Office of the Solicitor General for respondent. Constitution, be amended so as to authorize Senators and members of
the House of Representatives to become delegates to the
CONCEPCION, C.J.: aforementioned constitutional convention, without forfeiting their
respective seats in Congress.
G. R. No. L-28196 is an original action for prohibition, with preliminary
injunction. Subsequently, Congress passed a bill, which, upon approval by the
President, on June 17, 1967, became Republic Act No. 4913, providing that
Petitioner therein prays for judgment: the amendments to the Constitution proposed in the aforementioned
Resolutions No. 1 and 3 be submitted, for approval by the people, at the
1) Restraining: (a) the Commission on Elections from enforcing Republic general elections which shall be held on November 14, 1967.
Act No. 4913, or from performing any act that will result in the holding of

22
The petition in L-28196 was filed on October 21, 1967. At the hearing
thereof, on October 28, 1967, the Solicitor General appeared on behalf of
respondents. Moreover, Atty. Juan T. David and counsel for the Philippine
Constitution Association hereinafter referred to as the PHILCONSA
were allowed to argue as amici curiae. Said counsel for the PHILCONSA,
Dr. Salvador Araneta, likewise prayed that the decision in this case be
deferred until after a substantially identical case brought by said
organization before the Commission on Elections,1 which was expected
to decide it any time, and whose decision would, in all probability, be
appealed to this Court had been submitted thereto for final
determination, for a joint decision on the identical issues raised in both
cases. In fact, on October 31, 1967, the PHILCONSA filed with this Court
the petition in G. R. No. L-28224, for review by certiorari of the resolution
of the Commission on Elections2 dismissing the petition therein. The two
(2) cases were deemed submitted for decision on November 8, 1967,
upon the filing of the answer of respondent, the memorandum of the
petitioner and the reply memorandum of respondent in L-28224.
Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino
citizen, a taxpayer, and a voter. He claims to have instituted case L-28196
as a class unit, for and in behalf of all citizens, taxpayers, and voters
similarly situated. Although respondents and the Solicitor General have
filed an answer denying the truth of this allegation, upon the ground that
they have no knowledge or information to form a belief as to the truth
thereof, such denial would appear to be a perfunctory one. In fact, at the
hearing of case L-28196, the Solicitor General expressed himself in favor
of a judicial determination of the merits of the issued raised in said case.
The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly
organized and existing under the laws of the Philippines, and a civic, non-
profit and non-partisan organization the objective of which is to uphold
the rule of law in the Philippines and to defend its Constitution against
erosions or onslaughts from whatever source. Despite his
aforementioned statement in L-28196, in his answer in L-28224 the
Solicitor General maintains that this Court has no jurisdiction over the
subject-matter of L-28224, upon the ground that the same is "merely
political" as held in Mabanag vs. Lopez Vito.3 Senator Arturo M. Tolentino,
who appeared before the Commission on Elections and filed an
opposition to the PHILCONSA petition therein, was allowed to appear
before this Court and objected to said petition upon the ground: a) that
the Court has no jurisdiction either to grant the relief sought in the
petition, or to pass upon the legality of the composition of the House of
Representatives; b) that the petition, if granted, would, in effect, render
in operational the legislative department; and c) that "the failure of
Congress to enact a valid reapportionment law . . . does not have the
legal effect of rendering illegal the House of Representatives elected
thereafter, nor of rendering its acts null and void."
JURISDICTION
As early as Angara vs. Electoral Commission,4 this Court speaking
through one of the leading members of the Constitutional Convention
and a respected professor of Constitutional Law, Dr. Jose P. Laurel
declared that "the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent
units thereof." It is true that in Mabanag vs. Lopez Vito,5 this Court
characterizing the issue submitted thereto as a political one, declined to
pass upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution which
was being submitted to the people for ratification satisfied the three-
fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes vs. Chief Accountant
of the Senate,6 Avelino vs. Cuenco,7 Taada vs. Cuenco,8 and Macias vs.
Commission on Elections.9 In the first, we held that the officers and
employees of the Senate Electoral Tribunal are under its supervision and
control, not of that of the Senate President, as claimed by the latter; in
the second, this Court proceeded to determine the number of Senators
necessary for a quorum in the Senate; in the third, we nullified the
election, by Senators belonging to the party having the largest number of
votes in said chamber, purporting to act on behalf of the party having the
second largest number of votes therein, of two (2) Senators belonging to
the first party, as members, for the second party, of the, Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an act of
Congress purporting to apportion the representative districts for the
House of Representatives, upon the ground that the apportionment had
23
not been made as may be possible according to the number of
inhabitants of each province. Thus we rejected the theory, advanced in
these four (4) cases, that the issues therein raised were political
questions the determination of which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments
thereto is not included in the general grant of legislative powers to
Congress.10 It is part of the inherent powers of the people as the
repository of sovereignty in a republican state, such as ours11 to make,
and, hence, to amend their own Fundamental Law. Congress may
propose amendments to the Constitution merely because the same
explicitly grants such power.12 Hence, when exercising the same, it is said
that Senators and Members of the House of Representatives act, not as
members of Congress, but as component elements of a constituent
assembly. When acting as such, the members of Congress derive their
authority from the Constitution, unlike the people, when performing the
same function,13 for their authority does not emanate from the
Constitution they are the very source of all powers of government,
including the Constitution itself .
Since, when proposing, as a constituent assembly, amendments to the
Constitution, the members of Congress derive their authority from the
Fundamental Law, it follows, necessarily, that they do not have the final
say on whether or not their acts are within or beyond constitutional
limits. Otherwise, they could brush aside and set the same at naught,
contrary to the basic tenet that ours is a government of laws, not of men,
and to the rigid nature of our Constitution. Such rigidity is stressed by the
fact that, the Constitution expressly confers upon the Supreme Court,14
the power to declare a treaty unconstitutional,15 despite the eminently
political character of treaty-making power.
In short, the issue whether or not a Resolution of Congress acting as a
constituent assembly violates the Constitution essentially justiciable,
not political, and, hence, subject to judicial review, and, to the extent that
this view may be inconsistent with the stand taken in Mabanag vs. Lopez
Vito,16 the latter should be deemed modified accordingly. The Members
of the Court are unanimous on this point.
THE MERITS
Section 1 of Article XV of the Constitution, as amended, reads:
The Congress in joint session assembled by a vote of three-
fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to
this Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their
ratification.
Pursuant to this provision, amendments to the Constitution may be
proposed, either by Congress, or by a convention called by Congress for
that purpose. In either case, the vote of "three-fourths of all the
members of the Senate and of the House of Representatives voting
separately" is necessary. And, "such amendments shall be valid as part
of" the "Constitution when approved by a majority of the votes cast at an
election at which the amendments are submitted to the people for their
ratification."
In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been
approved by a vote of three-fourths of all the members of the Senate and
of the House of Representatives voting separately. This, notwithstanding,
it is urged that said resolutions are null and void because:
1. The Members of Congress, which approved the proposed amendments,
as well as the resolution calling a convention to propose amendments,
are, at best, de facto Congressmen;
2. Congress may adopt either one of two alternatives propose
amendments or call a convention therefore but may not avail of both
that is to say, propose amendment and call a convention at the same
time;
24
3. The election, in which proposals for amendment to the Constitution
shall be submitted for ratification, must be a special election, not a general
election, in which officers of the national and local governments such
as the elections scheduled to be held on November 14, 1967 will be
chosen; and
4. The spirit of the Constitution demands that the election, in which
proposals for amendment shall be submitted to the people for
ratification, must be held under such conditions which, allegedly, do
not exist as to give the people a reasonable opportunity to have a fair
grasp of the nature and implications of said amendments.
Legality of Congress and Legal Status of the Congressmen
The first objection is based upon Section 5, Article VI, of the Constitution,
which provides:
The House of Representatives shall be composed of not more
than one hundred and twenty Members who shall be apportioned
among the several provinces as nearly as may be according to the
number of their respective inhabitants, but each province shall
have at least one Member. The Congress shall by law make an
apportionment within three years after the return of every
enumeration, and not otherwise. Until such apportionment shall
have been made, the House of Representatives shall have the
same number of Members as that fixed by law for the National
Assembly, who shall be elected by the qualified electors from the
present Assembly districts. Each representative district shall
comprise, as far as practicable, contiguous and compact territory.
It is urged that the last enumeration or census took place in 1960; that, no
apportionment having been made within three (3) years thereafter, the
Congress of the Philippines and/or the election of its Members became
illegal; that Congress and its Members, likewise, became a de facto
Congress and/or de facto congressmen, respectively; and that,
consequently, the disputed Resolutions, proposing amendments to the
Constitution, as well as Republic Act No. 4913, are null and void.
It is not true, however, that Congress has not made an apportionment
within three years after the enumeration or census made in 1960. It did
actually pass a bill, which became Republic Act No. 3040,17 purporting to
make said apportionment. This Act was, however, declared
unconstitutional, upon the ground that the apportionment therein
undertaken had not been made according to the number of inhabitants
of the different provinces of the Philippines.18
Moreover, we are unable to agree with the theory that, in view of the
failure of Congress to make a valid apportionment within the period
stated in the Constitution, Congress became an "unconstitutional
Congress" and that, in consequence thereof, the Members of its House of
Representatives are de facto officers. The major premise of this process
of reasoning is that the constitutional provision on "apportionment
within three years after the return of every enumeration, and not
otherwise," is mandatory. The fact that Congress is under legal obligation
to make said apportionment does not justify, however, the conclusion
that failure to comply with such obligation rendered Congress illegal or
unconstitutional, or that its Members have become de facto officers.
It is conceded that, since the adoption of the Constitution in 1935,
Congress has not made a valid apportionment as required in said
fundamental law. The effect of this omission has been envisioned in the
Constitution, pursuant to which:
. . . Until such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that
fixed by law for the National Assembly, who shall be elected by
the qualified electors from the present Assembly districts. . . . .
The provision does not support the view that, upon the expiration of the
period to make the apportionment, a Congress which fails to make it is
dissolved or becomes illegal. On the contrary, it implies necessarily that
Congress shall continue to function with the representative districts
existing at the time of the expiration of said period.
It is argued that the above-quoted provision refers only to the elections
held in 1935. This theory assumes that an apportionment had to be made
25
necessarily before the first elections to be held after the inauguration of
the Commonwealth of the Philippines, or in 1938.19 The assumption, is,
however, unwarranted, for there had been no enumeration in 1935, and
nobody could foretell when it would be made. Those who drafted and
adopted the Constitution in 1935 could be certain, therefore, that the
three-year period, after the earliest possible enumeration, would expire
after the elections in 1938.
What is more, considering that several provisions of the Constitution,
particularly those on the legislative department, were amended in 1940,
by establishing a bicameral Congress, those who drafted and adopted
said amendment, incorporating therein the provision of the original
Constitution regarding the apportionment of the districts for
representatives, must have known that the three-year period therefor
would expire after the elections scheduled to be held and actually held in
1941.
Thus, the events contemporaneous with the framing and ratification of
the original Constitution in 1935 and of the amendment thereof in 1940
strongly indicate that the provision concerning said apportionment and
the effect of the failure to make it were expected to be applied to
conditions obtaining after the elections in 1935 and 1938, and even after
subsequent elections.
Then again, since the report of the Director of the Census on the last
enumeration was submitted to the President on November 30, 1960, it
follows that the three-year period to make the apportionment did not
expire until 1963, or after the Presidential elections in 1961. There can be
no question, therefore, that the Senate and the House of Representatives
organized or constituted on December 30, 1961, were de jure bodies, and
that the Members thereof were de jure officers. Pursuant to the theory of
petitioners herein, upon expiration of said period of three years, or late in
1963, Congress became illegal and its Members, or at least, those of the
House of Representatives, became illegal holder of their respective
offices, and were de facto officers.
Petitioners do not allege that the expiration of said three-year period
without a reapportionment, had the effect of abrogating or repealing the
legal provision creating Congress, or, at least, the House of
Representatives, and are not aware of any rule or principle of law that
would warrant such conclusion. Neither do they allege that the term of
office of the members of said House automatically expired or that they
ipso facto forfeited their seats in Congress, upon the lapse of said period
for reapportionment. In fact, neither our political law, nor our law on
public officers, in particular, supports the view that failure to discharge a
mandatory duty, whatever it may be, would automatically result in the
forfeiture of an office, in the absence of a statute to this effect.
Similarly, it would seem obvious that the provision of our Election Law
relative to the election of Members of Congress in 1965 were not
repealed in consequence of the failure of said body to make an
apportionment within three (3) years after the census of 1960. Inasmuch
as the general elections in 1965 were presumably held in conformity with
said Election Law, and the legal provisions creating Congress with a
House of Representatives composed of members elected by qualified
voters of representative districts as they existed at the time of said
elections remained in force, we can not see how said Members of the
House of Representatives can be regarded as de facto officers owing to
the failure of their predecessors in office to make a reapportionment
within the period aforementioned.
Upon the other hand, the Constitution authorizes the impeachment of
the President, the Vice-President, the Justices of the Supreme Court and
the Auditor General for, inter alia, culpable violation of the Constitution,20
the enforcement of which is, not only their mandatory duty, but also,
their main function. This provision indicates that, despite the violation of
such mandatory duty, the title to their respective offices remains
unimpaired, until dismissal or ouster pursuant to a judgment of conviction
rendered in accordance with Article IX of the Constitution. In short, the
loss of office or the extinction of title thereto is not automatic.
Even if we assumed, however, that the present Members of Congress are
merely de facto officers, it would not follow that the contested
resolutions and Republic Act No. 4913 are null and void. In fact, the main
reasons for the existence of the de facto doctrine is that public interest
demands that acts of persons holding, under color of title, an office
26
created by a valid statute be, likewise, deemed valid insofar as the public
as distinguished from the officer in question is concerned.21 Indeed,
otherwise, those dealing with officers and employees of the Government
would be entitled to demand from them satisfactory proof of their title to
the positions they hold, before dealing with them, or before recognizing
their authority or obeying their commands, even if they should act within
the limits of the authority vested in their respective offices, positions or
employments.22 One can imagine this great inconvenience, hardships and
evils that would result in the absence of the de facto doctrine.
As a consequence, the title of a de facto officer cannot be assailed
collaterally.23 It may not be contested except directly, by quo warranto
proceedings. Neither may the validity of his acts be questioned upon the
ground that he is merely a de facto officer.24 And the reasons are obvious:
(1) it would be an indirect inquiry into the title to the office; and (2) the
acts of a de facto officer, if within the competence of his office, are valid,
insofar as the public is concerned.
It is argued that the foregoing rules do not apply to the cases at bar
because the acts therein involved have not been completed and
petitioners herein are not third parties. This pretense is untenable. It is
inconsistent with Tayko vs. Capistrano.25 In that case, one of the parties to
a suit being heard before Judge Capistrano objected to his continuing to
hear the case, for the reason that, meanwhile, he had reached the age of
retirement. This Court held that the objection could not be entertained,
because the Judge was at least, a de facto Judge, whose title can not be
assailed collaterally. It should be noted that Tayko was not a third party
insofar as the Judge was concerned. Tayko was one of the parties in the
aforementioned suit. Moreover, Judge Capistrano had not, as yet,
finished hearing the case, much less rendered decision therein. No rights
had vested in favor of the parties, in consequence of the acts of said
Judge. Yet, Tayko's objection was overruled. Needless to say, insofar as
Congress is concerned, its acts, as regards the Resolutions herein
contested and Republic Act No. 4913, are complete. Congress has nothing
else to do in connection therewith.
The Court is, also, unanimous in holding that the objection under
consideration is untenable.
Available Alternatives to Congress
Atty. Juan T. David, as amicus curiae, maintains that Congress may either
propose amendments to the Constitution or call a convention for that
purpose, but it can not do both, at the same time. This theory is based
upon the fact that the two (2) alternatives are connected in the
Constitution by the disjunctive "or." Such basis is, however, a weak one,
in the absence of other circumstances and none has brought to our
attention supporting the conclusion drawn by the amicus curiae. In
fact, the term "or" has, oftentimes, been held to mean "and," or vice-
versa, when the spirit or context of the law warrants it.26
It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to
the constitutional provision on Congress, to be submitted to the people
for ratification on November 14, 1967, whereas R. B. H. No. 2 calls for a
convention in 1971, to consider proposals for amendment to the
Constitution, in general. In other words, the subject-matter of R. B. H. No.
2 is different from that of R B. H. Nos. 1 and 3. Moreover, the
amendments proposed under R. B. H. Nos. 1 and 3, will be submitted for
ratification several years before those that may be proposed by the
constitutional convention called in R. B. H. No. 2. Again, although the
three (3) resolutions were passed on the same date, they were taken up
and put to a vote separately, or one after the other. In other words, they
were not passed at the same time.
In any event, we do not find, either in the Constitution, or in the history
thereof anything that would negate the authority of different Congresses
to approve the contested Resolutions, or of the same Congress to pass
the same in, different sessions or different days of the same
congressional session. And, neither has any plausible reason been
advanced to justify the denial of authority to adopt said resolutions on
the same day.
Counsel ask: Since Congress has decided to call a constitutional
convention to propose amendments, why not let the whole thing be
submitted to said convention, instead of, likewise, proposing some
specific amendments, to be submitted for ratification before said
convention is held? The force of this argument must be conceded. but the
27
same impugns the wisdom of the action taken by Congress, not its
authority to take it. One seeming purpose thereof to permit Members of
Congress to run for election as delegates to the constitutional convention
and participate in the proceedings therein, without forfeiting their seats
in Congress. Whether or not this should be done is a political question,
not subject to review by the courts of justice.
On this question there is no disagreement among the members of the
Court.
May Constitutional Amendments Be Submitted for Ratification in a
General Election?
Article XV of the Constitution provides:
. . . The Congress in joint session assembled, by a vote of three-
fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to
this Constitution or call a contention for that purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their
ratification.
There is in this provision nothing to indicate that the "election" therein
referred to is a "special," not a general, election. The circumstance that
three previous amendments to the Constitution had been submitted to
the people for ratification in special elections merely shows that Congress
deemed it best to do so under the circumstances then obtaining. It does
not negate its authority to submit proposed amendments for ratification
in general elections.
It would be better, from the viewpoint of a thorough discussion of the
proposed amendments, that the same be submitted to the people's
approval independently of the election of public officials. And there is no
denying the fact that an adequate appraisal of the merits and demerits
proposed amendments is likely to be overshadowed by the great
attention usually commanded by the choice of personalities involved in
general elections, particularly when provincial and municipal officials are
to be chosen. But, then, these considerations are addressed to the
wisdom of holding a plebiscite simultaneously with the election of public
officer. They do not deny the authority of Congress to choose either
alternative, as implied in the term "election" used, without qualification,
in the abovequoted provision of the Constitution. Such authority
becomes even more patent when we consider: (1) that the term
"election," normally refers to the choice or selection of candidates to
public office by popular vote; and (2) that the word used in Article V of
the Constitution, concerning the grant of suffrage to women is, not
"election," but "plebiscite."
Petitioners maintain that the term "election," as used in Section 1 of Art.
XV of the Constitution, should be construed as meaning a special election.
Some members of the Court even feel that said term ("election") refers
to a "plebiscite," without any "election," general or special, of public
officers. They opine that constitutional amendments are, in general, if not
always, of such important, if not transcendental and vital nature as to
demand that the attention of the people be focused exclusively on the
subject-matter thereof, so that their votes thereon may reflect no more
than their intelligent, impartial and considered view on the merits of the
proposed amendments, unimpaired, or, at least, undiluted by extraneous,
if not insidious factors, let alone the partisan political considerations that
are likely to affect the selection of elective officials.
This, certainly, is a situation to be hoped for. It is a goal the attainment of
which should be promoted. The ideal conditions are, however, one thing.
The question whether the Constitution forbids the submission of
proposals for amendment to the people except under such conditions, is
another thing. Much as the writer and those who concur in this opinion
admire the contrary view, they find themselves unable to subscribe
thereto without, in effect, reading into the Constitution what they believe
is not written thereon and can not fairly be deduced from the letter
thereof, since the spirit of the law should not be a matter of sheer
speculation.
28
The majority view although the votes in favor thereof are insufficient
to declare Republic Act No. 4913 unconstitutional as ably set forth in
the opinion penned by Mr. Justice Sanchez, is, however, otherwise.
Would the Submission now of the Contested Amendments to the People
Violate the Spirit of the Constitution?
It should be noted that the contested Resolutions were approved on
March 16, 1967, so that, by November 14, 1967, our citizenry shall have
had practically eight (8) months to be informed on the amendments in
question. Then again, Section 2 of Republic Act No. 4913 provides:
(1) that "the amendments shall be published in three consecutive issues
of the Official Gazette, at least twenty days prior to the election;"
(2) that "a printed copy of the proposed amendments shall be posted in a
conspicuous place in every municipality, city and provincial office building
and in every polling place not later than October 14, 1967," and that said
copy "shall remain posted therein until after the election;"
(3) that "at least five copies of said amendment shall be kept in each
polling place, to be made available for examination by the qualified
electors during election day;"
(4) that "when practicable, copies in the principal native languages, as
may be determined by the Commission on Elections, shall be kept in each
polling place;"
(5) that "the Commission on Elections shall make available copies of said
amendments in English, Spanish and, whenever practicable, in the
principal native languages, for free distributing:" and
(6) that the contested Resolutions "shall be printed in full" on the back of
the ballots which shall be used on November 14, 1967.
We are not prepared to say that the foregoing measures are palpably
inadequate to comply with the constitutional requirement that proposals
for amendment be "submitted to the people for their ratification," and
that said measures are manifestly insufficient, from a constitutional
viewpoint, to inform the people of the amendment sought to be made.
These were substantially the same means availed of to inform the people
of the subject submitted to them for ratification, from the original
Constitution down to the Parity Amendment. Thus, referring to the
original Constitution, Section 1 of Act No. 4200, provides:
Said Constitution, with the Ordinance appended thereto, shall be
published in the Official Gazette, in English and in Spanish, for
three consecutive issues at least fifteen days prior to said
election, and a printed copy of said Constitution, with the
Ordinance appended thereto, shall be posted in a conspicuous
place in each municipal and provincial government office building
and in each polling place not later than the twenty-second day of
April, nineteen hundred and thirty-five, and shall remain posted
therein continually until after the termination of the election. At
least ten copies of the Constitution with the Ordinance appended
thereto, in English and in Spanish, shall be kept at each polling
place available for examination by the qualified electors during
election day. Whenever practicable, copies in the principal local
dialects as may be determined by the Secretary of the Interior
shall also be kept in each polling place.
The provision concerning woman's suffrage is Section 1 of
Commonwealth Act No. 34, reading:
Said Article V of the Constitution shall be published in the Official
Gazette, in English and in Spanish, for three consecutive issues at
least fifteen days prior to said election, and the said Article V shall
be posted in a conspicuous place in each municipal and provincial
office building and in each polling place not later than the twenty-
second day of April, nineteen and thirty-seven, and shall remain
posted therein continually until after the termination of the
plebiscite. At least ten copies of said Article V of the Constitution,
in English and in Spanish, shall be kept at each polling place
available for examination by the qualified electors during the
29
 plebiscite. Whenever practicable, copies in the principal native
languages, as may be determined by the Secretary of the Interior,
shall also be kept in each polling place.
Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940
amendments, is of the following tenor:
The said amendments shall be published in English and Spanish in
three consecutive issues of the Official Gazette at least twenty
days prior to the election. A printed copy thereof shall be posted
in a conspicuous place in every municipal, city, and provincial
government office building and in every polling place not later
than May eighteen, nineteen hundred and forty, and shall remain
posted therein until after the election. At least ten copies of said
amendments shall be kept in each polling place to be made
available for examination by the qualified electors during election
day. When practicable, copies in the principal native languages, as
may be determined by the Secretary of the Interior, shall also be
kept therein.
As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to
the effect that:
The said amendment shall be published in English and Spanish in
three consecutive issues of the Official Gazette at least twenty
days prior to the election. A printed copy thereof shall be posted
in a conspicuous place in every municipal, city, and provincial
government office building and in every polling place not later
than February eleven, nineteen hundred and forty-seven, and
shall remain posted therein until after the election. At least, ten
copies of the said amendment shall be kept in each polling place
to be made available for examination by the qualified electors
during election day. When practicable, copies in the principal
native languages, as may be determined by the Commission on
Elections, shall also be kept in each polling place.
The main difference between the present situation and that obtaining in
connection with the former proposals does not arise from the law
enacted therefor. The difference springs from the circumstance that the
major political parties had taken sides on previous amendments to the
Constitution except, perhaps, the woman's suffrage and,
consequently, debated thereon at some length before the plebiscite took
place. Upon the other hand, said political parties have not seemingly
made an issue on the amendments now being contested and have,
accordingly, refrained from discussing the same in the current political
campaign. Such debates or polemics as may have taken place on a
rather limited scale on the latest proposals for amendment, have been
due principally to the initiative of a few civic organizations and some
militant members of our citizenry who have voiced their opinion thereon.
A legislation cannot, however, be nullified by reason of the failure of
certain sectors of the community to discuss it sufficiently. Its
constitutionality or unconstitutionality depends upon no other factors
than those existing at the time of the enactment thereof, unaffected by
the acts or omissions of law enforcing agencies, particularly those that
take place subsequently to the passage or approval of the law.
Referring particularly to the contested proposals for amendment, the
sufficiency or insufficiency, from a constitutional angle, of the submission
thereof for ratification to the people on November 14, 1967, depends
in the view of those who concur in this opinion, and who, insofar as this
phase of the case, constitute the minority upon whether the
provisions of Republic Act No. 4913 are such as to fairly apprise the
people of the gist, the main idea or the substance of said proposals,
which is under R. B. H. No. 1 the increase of the maximum number
of seats in the House of Representatives, from 120 to 180, and under R.
B. H. No. 3 the authority given to the members of Congress to run for
delegates to the Constitutional Convention and, if elected thereto, to
discharge the duties of such delegates, without forfeiting their seats in
Congress. We who constitute the minority believe that Republic Act
No. 4913 satisfies such requirement and that said Act is, accordingly,
constitutional.
A considerable portion of the people may not know how over 160 of the
proposed maximum of representative districts are actually apportioned
by R. B. H. No. 1 among the provinces in the Philippines. It is not
improbable, however, that they are not interested in the details of the
30
apportionment, or that a careful reading thereof may tend in their simple
minds, to impair a clear vision thereof. Upon the other hand, those who
are more sophisticated, may enlighten themselves sufficiently by reading
the copies of the proposed amendments posted in public places, the
copies kept in the polling places and the text of contested resolutions, as
printed in full on the back of the ballots they will use.
It is, likewise, conceivable that as many people, if not more, may fail to
realize or envisage the effect of R. B. H. No. 3 upon the work of the
Constitutional Convention or upon the future of our Republic. But, then,
nobody can foretell such effect with certainty. From our viewpoint, the
provisions of Article XV of the Constitution are satisfied so long as the
electorate knows that R. B. H. No. 3 permits Congressmen to retain their
seats as legislators, even if they should run for and assume the functions
of delegates to the Convention.
We are impressed by the factors considered by our distinguished and
esteemed brethren, who opine otherwise, but, we feel that such factors
affect the wisdom of Republic Act No. 4913 and that of R. B. H. Nos. 1 and
3, not the authority of Congress to approve the same.
The system of checks and balances underlying the judicial power to strike
down acts of the Executive or of Congress transcending the confines set
forth in the fundamental laws is not in derogation of the principle of
separation of powers, pursuant to which each department is supreme
within its own sphere. The determination of the conditions under which
the proposed amendments shall be submitted to the people is
concededly a matter which falls within the legislative sphere. We do not
believe it has been satisfactorily shown that Congress has exceeded the
limits thereof in enacting Republic Act No. 4913. Presumably, it could
have done something better to enlighten the people on the subject-
matter thereof. But, then, no law is perfect. No product of human
endeavor is beyond improvement. Otherwise, no legislation would be
constitutional and valid. Six (6) Members of this Court believe, however,
said Act and R. B. H. Nos. 1 and 3 violate the spirit of the Constitution.
Inasmuch as there are less than eight (8) votes in favor of declaring
Republic Act 4913 and R. B. H. Nos. 1 and 3 unconstitutional and invalid,
the petitions in these two (2) cases must be, as they are hereby, dismiss
and the writs therein prayed for denied, without special pronouncement
as to costs. It is so ordered.
Makalintal and Bengzon, J.P., JJ., concur.
Fernando, J., concurs fully with the above opinion, adding a few words on
the question of jurisdiction.
Separate Opinions
MAKALINTAL, J., concurring:
I concur in the foregoing opinion of the Chief Justice. I would make some
additional observations in connection with my concurrence. Sections 2
and 4 of Republic Act No. 4913 provide:
Sec. 2. The amendments shall be published in three consecutive
issues of the Official Gazette at least twenty days prior to the
election. A printed copy thereof shall be posted in a conspicuous
place in every municipality, city and provincial office building and
in every polling place not later than October fourteen, nineteen
hundred and sixty-seven, and shall remain posted therein until
after the election. At least five copies of the said amendments
shall be kept in each polling place to be made available for
examination by the qualified electors during election day. When
practicable, copies in the principal native languages, as may be
determined by the Commission on Elections, shall be kept in each
polling place. The Commission on Elections shall make available
copies of each amendments in English, Spanish and, whenever
practicable, in the principal native languages, for free distribution.
xxx xxx xxx
Sec. 4. The ballots which shall be used in the election for the
approval of said amendments shall be printed in English and
31
 Pilipino and shall be in the size and form prescribed by the
Commission on Elections: Provided, however, That at the back of
said ballot there shall be printed in full Resolutions of both
Houses of Congress Numbered One and Three, both adopted on
March sixteen, nineteen hundred and sixty-seven, proposing the
amendments: Provided, further, That the questionnaire appearing
on the face of the ballot shall be as follows:
Are you in favor of the proposed amendment to Section five of
Article VI of our Constitution printed at the back of this ballot?
Are you in favor of the proposed amendment to section sixteen
of Article VI of our Constitution printed at the back of this ballot?
To vote for the approval of the proposed amendments, the voter
shall write the word "yes" or its equivalent in Pilipino or in the
local dialect in the blank space after each question; to vote for the
rejection thereof, he shall write the word "No" or its equivalent in
Pilipino or in the local dialect.
I believe that intrinsically, that is, considered in itself and without
reference to extraneous factors and circumstances, the manner
prescribed in the aforesaid provisions is sufficient for the purpose of
having the proposed amendments submitted to the people for their
ratification, as enjoined in Section 1, Article XV of the Constitution. I am at
a loss to say what else should have been required by the Act to make it
adhere more closely to the constitutional requirement. Certainly it would
have been out of place to provide, for instance, that government officials
and employees should go out and explain the amendments to the people,
or that they should be the subject of any particular means or form of
public discussion.
The objection of some members of the Court to Republic Act No. 4913
seems to me predicated on the fact that there are so many other issues at
stake in the coming general election that the attention of the electorate,
cannot be entirely focused on the proposed amendments, such that
there is a failure to properly submit them for ratification within the
intendment of the Constitution. If that is so, then the defect is not
intrinsic in the law but in its implementation. The same manner of
submitting the proposed amendments to the people for ratification may,
in a different setting, be sufficient for the purpose. Yet I cannot conceive
that the constitutionality or unconstitutionality of a law may be made to
depend willy-nilly on factors not inherent in its provisions. For a law to be
struck down as unconstitutional it must be so by reason of some
irreconcilable conflict between it and the Constitution. Otherwise a law
may be either valid or invalid, according to circumstances not found in its
provisions, such as the zeal with which they are carried out. To such a
thesis I cannot agree. The criterion would be too broad and relative, and
dependent upon individual opinions that at best are subjective. What one
may regard as sufficient compliance with the requirement of submission
to the people, within the context of the same law, may not be so to
another. The question is susceptible of as many views as there are
viewers; and I do not think this Court would be justified in saying that its
own view on the matter is the correct one, to the exclusion of the
opinions of others.
On the other hand, I reject the argument that the ratification must
necessarily be in a special election or plebiscite called for that purpose
alone. While such procedure is highly to be preferred, the Constitution
speaks simply of "an election at which the amendments are submitted to
the people for their ratification," and I do not subscribe to the restrictive
interpretation that the petitioners would place on this provision, namely,
that it means only a special election.
BENGZON, J.P., J., concurring:
It is the glory of our institutions that they are founded upon law, that no
one can exercise any authority over the rights and interests of others
except pursuant to and in the manner authorized by law.1 Based upon this
principle, petitioners Ramon A. Gonzales and Philippine Constitution
Association (PHILCONSA) come to this Court in separate petitions.
Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in
representation thru class suit of all citizens of this country, filed this suit
32
for prohibition with preliminary injunction to restrain the Commission on
Elections, Director of Printing and Auditor General from implementing
and/or complying with Republic Act 4913, assailing said law as
unconstitutional.
Petitioner PHILCONSA, as a civic, non-profit and non-partisan
corporation, assails the constitutionality not only of Republic Act 4913 but
also of Resolutions of Both Houses Nos. 1 and 3 of March 16, 1967.
Republic Act 4913, effective June 17, 1967, is an Act submitting to the
Filipino people for approval the amendments to the Constitution of the
Philippines proposed by the Congress of the Philippines in Resolutions of
Both Houses Numbered 1 and 3, adopted on March 16, 1967. Said Republic
Act fixes the date and manner of the election at which the aforesaid
proposed amendments shall be voted upon by the people, and
appropriates funds for said election. Resolutions of Both Houses Nos. 1
and 3 propose two amendments to the Constitution: the first, to amend
Sec. 5, Art. VI, by increasing the maximum membership of the House of
Representatives from 120 to 180, apportioning 160 of said 180 seats and
eliminating the provision that Congress shall by law make an
apportionment within three years after the return of every enumeration;
the second, to amend Sec. 16, Art. VI, by allowing Senators and
Representatives to be delegates to a constitutional convention without
forfeiting their seats.
Since both petitions relate to the proposed amendments, they are
considered together herein.
Specifically and briefly, petitioner Gonzales' objections are as follows: (1)
Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, in submitting
the proposed amendments to the Constitution, to the people for
approval, at the general election of 1967 instead of at a special election
solely for that purpose; (2) Republic Act 4913 violates Sec. 1, Art. XV of the
Constitution, since it was not passed with the 3/4 vote in joint session
required when Congress proposes amendments to the Constitution, said
Republic Act being a step in or part of the process of proposing
amendments to the Constitution; and (3) Republic Act 4913 violates the
due process clause of the Constitution (Sec. 1, Subsec. 1, Art. III), in not
requiring that the substance of the proposed amendments be stated on
the face of the ballot or otherwise rendering clear the import of the
proposed amendments, such as by stating the provisions before and after
said amendments, instead of printing at the back of the ballot only the
proposed amendments.
Since observance of Constitutional provisions on the procedure for
amending the Constitution is concerned, the issue is cognizable by this
Court under its powers to review an Act of Congress to determine its
conformity to the fundamental law. For though the Constitution leaves
Congress free to propose whatever Constitutional amendment it deems
fit, so that the substance or content of said proposed amendment is a
matter of policy and wisdom and thus a political question, the
Constitution nevertheless imposes requisites as to the manner or
procedure of proposing such amendments, e.g., the three-fourths vote
requirement. Said procedure or manner, therefore, from being left to the
discretion of Congress, as a matter of policy and wisdom, is fixed by the
Constitution. And to that extent, all questions bearing on whether
Congress in proposing amendments followed the procedure required by
the Constitution, is perforce justiciable, it not being a matter of policy or
wisdom.
Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly
does not bear him on the point. It nowhere requires that the ratification
be thru an election solely for that purpose. It only requires that it be at
"an election at which the amendments are submitted to the people for
their ratification." To join it with an election for candidates to public
office, that is, to make it concurrent with such election, does not render it
any less an election at which the proposed amendments are submitted to
the people for their ratification. To prohibition being found in the plain
terms of the Constitution, none should be inferred. Had the framers of
requiring Constitution thought of requiring a special election for the
purpose only of the proposed amendments, they could have said so, by
qualifying the phrase with some word such as "special" or "solely" or
"exclusively". They did not.
It is not herein decided that such concurrence of election is wise, or that it
would not have been better to provide for a separate election exclusively
33
for the ratification of the proposed amendments. The point however is
that such separate and exclusive election, even if it may be better or
wiser, which again, is not for this Court to decide, is not included in the
procedure required by the Constitution to amend the same. The function
of the Judiciary is "not to pass upon questions of wisdom, justice or
expediency of legislation".2 It is limited to determining whether the action
taken by the Legislative Department has violated the Constitution or not.
On this score, I am of the opinion that it has not.
Petitioner Gonzales' second point is that Republic Act 4913 is deficient for
not having been passed by Congress in joint session by 3/4 vote.
Sec. 1, Art. XV of the Constitution provides:
Sec. 1. The Congress in joint session assembled, by a vote of three-
fourths of all the members of the Senate and of the House of
Representatives voting separately, may propose amendments to
this Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election to which
the amendments are submitted to the people for their
ratification.
Does Republic Act 4913 propose amendments to the Constitution? If by
the term "propose amendment" is meant to determine WHAT said
amendment shall be, then Republic Act 4913 does not; Resolutions of
Both Houses 1 and 3 already did that. If, on the other hand, it means, or
also means, to provide for how, when, and by what means the
amendments shall be submitted to the people for approval, then it does.
A careful reading of Sec. 1, Art. XV shows that the first sense. is the one
intended. Said Section has two sentences: in the first, it requires the 3/4
voting in joint session, for Congress to "propose amendments". And then
in the second sentence, it provides that "such amendments . . . shall be
submitted to the people for their ratification". This clearly indicates that
by the term "propose amendments" in the first sentence is meant to
frame the substance or the content or the WHAT-element of the
amendments; for it is this and this alone that is submitted to the people
for their ratification. The details of when the election shall be held for
approval or rejection of the proposed amendments, or the manner of
holding it, are not submitted for ratification to form part of the
Constitution. Stated differently, the plain language of Section 1, Art. XV,
shows that the act of proposing amendments is distinct from albeit
related to that of submitting the amendments to the people for their
ratification; and that the 3/4 voting requirement applies only to the first
step, not to the second one.
It follows that the submission of proposed amendments can be done thru
an ordinary statute passed by Congress. The Constitution does not
expressly state by whom the submission shall be undertaken; the rule is
that a power not lodged elsewhere under the Constitution is deemed to
reside with the legislative body, under the doctrine of residuary powers.
Congress therefore validly enacted Republic Act 4913 to fix the details of
the date and manner of submitting the proposed amendments to the
people for their ratification. Since it does not "propose amendments" in
the sense referred to by Sec. 1, Art. XV of the Constitution, but merely
provides for how and when the amendments, already proposed, are
going to be voted upon, the same does not need the 3/4 vote in joint
session required in Sec. 1, Art. XV of the Constitution. Furthermore,
Republic Act 4913 is an appropriation measure. Sec. 6 thereof
appropriates P1,000,000 for carrying out its provisions. Sec. 18, Art. VI of
the Constitution states that "All appropriation . . . bills shall originate
exclusively in the House of Representatives". Republic Act 4913,
therefore, could not have been validly adopted in a joint session,
reinforcing the view that Sec. 1, Art. XV does not apply to such a measure
providing for the holding of the election to ratify the proposed
amendments, which must perforce appropriate funds for its purpose.
Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends
against substantive due process. An examination of the provisions of the
law shows no violation of the due process clause of the Constitution. The
publication in the Official Gazette at least 20 days before the election, the
posting of notices in public buildings not later than October 14, 1967, to
remain posted until after the elections, the placing of copies of the
proposed amendments in the polling places, aside from printing the same
at the back of the ballot, provide sufficient opportunity to the voters to
34
cast an intelligent vote on the proposal. Due process refers only to
providing fair opportunity; it does not guarantee that the opportunity
given will in fact be availed of; that is the look-out of the voter and the
responsibility of the citizen. As long as fair and reasonable opportunity to
be informed is given, and it is, the due process clause is not infringed.
Non-printing of the provisions to be amended as they now stand, and the
printing of the full proposed amendments at the back of the ballot
instead of the substance thereof at the face of the ballot, do not deprive
the voter of fair opportunity to be informed. The present wording of the
Constitution is not being veiled or suppressed from him; he is conclusively
presumed to know them and they are available should he want to check
on what he is conclusively presumed to know. Should the voters choose
to remain ignorant of the present Constitution, the fault does not lie with
Congress. For opportunity to familiarize oneself with the Constitution as
it stands has been available thru all these years. Perhaps it would have
been more convenient for the voters if the present wording of the
provisions were also to be printed on the ballot. The same however is a
matter of policy. As long as the method adopted provides sufficiently
reasonable chance to intelligently vote on the amendments, and I think it
does in this case, it is not constitutionally defective.
Petitioner Gonzales' other arguments touch on the merits or wisdom of
the proposed amendments. These are for the people in their sovereign
capacity to decide, not for this Court.
Two arguments were further advanced: first, that Congress cannot both
call a convention and propose amendments; second, that the present
Congress is a de facto one, since no apportionment law was adopted
within three years from the last census of 1960, so that the
Representatives elected in 1961 are de facto officers only. Not being de
jure, they cannot propose amendments, it is argued.
As to the first point, Sec. 1 of Art. XV states that Congress "may propose
amendments or call a convention for that purpose". The term "or",
however, is frequently used as having the same meaning as "and"
particularly in permissive, affirmative sentences so that the interpretation
of the word "or" as "and" in the Constitution in such use will not change
its meaning (Vicksburg S. & P. R. Co. v. Goodenough, 32 So. 404, 411, 108
La, 442). And it should be pointed out that the resolutions proposing
amendments (R.B.H. Nos. 1 and 3) are different from that calling for a
convention (R.B.H. No. 2). Surely, if Congress deems it better or wise to
amend the Constitution before a convention called for is elected, it
should not be fettered from doing so. For our purposes in this case,
suffice it to note that the Constitution does not prohibit it from doing so.
As to the second argument, it is also true that Sec. 5 of Art. VI of the
Constitution provides in part that "The Congress shall by law make an
apportionment within three years after the return of every enumeration,
and not otherwise". It however further states in the next sentence: "Until
such apportionment shall have been made, the House of Representatives
shall have the same number of Members as that fixed by law for the
National Assembly, who shall be elected by the qualified electors from
the present assembly districts." The failure of Congress, therefore, to
pass a valid redistricting law since the time the above provision was
adopted, does not render the present districting illegal or
unconstitutional. For the Constitution itself provides for its continuance in
such case, rendering legal and de jure the status quo.
For the above reasons, I vote to uphold the constitutionality of Republic
Act 4913, and fully concur with the opinion of the Chief Justice.
FERNANDO, J., concurring:
At the outset, we are faced with a question of jurisdiction. The opinion
prepared by the Chief Justice discusses the matter with a fullness that
erases doubts and misgivings and clarifies the applicable principles. A few
words may however be added.
We start from the premise that only where it can be shown that the
question is to be solved by public opinion or where the matter has been
left by the Constitution to the sole discretion of any of the political
branches, as was so clearly stated by the then Justice Concepcion in
35
Taada v. Cuenco,1 may this Court avoid passing on the issue before it.
Whatever may be said about the present question, it is hard to speak with
certitude considering Article XV, that Congress may be entrusted with the
full and uncontrolled discretion on the procedure leading to proposals for
an amendment of the Constitution.
It may be said however that in Mabanag v. Lopez Vito,2 this Court through
Justice Tuason followed Coleman v. Miller,3 in its holding that certain
aspects of the amending process may be considered political. His opinion
quoted with approval the view of Justice Black, to which three other
members of the United States Supreme Court agreed, that the process
itself is political in its entirety, "from submission until an amendment
becomes part of the Constitution, and is not subject to judicial guidance,
control or interference at any point." In a sense that would solve the
matter neatly. The judiciary would be spared the at times arduous and in
every case soul-searching process of determining whether the procedure
for amendments required by the Constitution has been followed.
At the same time, without impugning the motives of Congress, which
cannot be judicially inquired into at any rate, it is not beyond the realm of
possibility that a failure to observe the requirements of Article XV would
occur. In the event that judicial intervention is sought, to rely
automatically on the theory of political question to avoid passing on such
a matter of delicacy might under certain circumstances be considered,
and rightly so, as nothing less than judicial abdication or surrender.
What appears regrettable is that a major opinion of an esteemed jurist,
the late Justice Tuason, would no longer be controlling. There is comfort
in the thought that the view that then prevailed was itself a product of
the times. It could very well be that considering the circumstances
existing in 1947 as well as the particular amendment sought to be
incorporated in the Constitution, the parity rights ordinance, the better
part of wisdom in view of the grave economic situation then confronting
the country would be to avoid the existence of any obstacle to its being
submitted for ratification. Moreover, the Republic being less than a year
old, American Supreme Court opinions on constitutional questions were-
invariably accorded uncritical acceptance. Thus the approach followed by
Justice Tuason is not difficult to understand. It may be said that there is
less propensity now, which is all to the good, for this Court to accord that
much deference to constitutional views coming from the quarter.
Nor is this mode of viewing the opinion of Justice Tuason to do injustice
to his memory. For as he stated in another major opinion in Araneta v.
Dinglasan,4 in ascertaining the meaning to be given the Emergency
Powers Act,5 one should not ignore what would ensue if a particular
mode of construction were followed. As he so emphatically stated, "We
test a rule by its results."
The consequences of a judicial veto on the then proposed amendment on
the economic survival of the country, an erroneous appraisal it turned out
later, constituted an effective argument for its submission. Why not then
consider the question political and let the people decide? That
assumption could have been indulged in. It could very well be the
inarticulate major premise. For many it did bear the stamp of judicial
statesmanship.
The opinion of Chief Justice Concepcion renders crystal-clear why as of
this date and in the foreseeable future judicial inquiry to assure the
utmost compliance with the constitutional requirement would be a more
appropriate response.
SANCHEZ, J., in separate opinion:
Right at the outset, the writer expresses his deep appreciation to Mr.
Justice Calixto O. Zaldivar and Mr. Justice Fred Ruiz Castro for their
invaluable contribution to the substance and form of the opinion which
follows.
Directly under attack in this, a petition for prohibition, is the
constitutionality of Republic Act 4913, approved on June 17, 1967. This Act
seeks to implement Resolutions 1 and 3 adopted by the Senate and the
House of Representatives on March 16, 1967 with the end in view of
amending vital portions of the Constitution.
36
Since the problem here presented has its roots in the resolutions
aforesaid of both houses of Congress, it may just as well be that we recite
in brief the salient features thereof. Resolution No. 1 increases the
membership of the House of Representatives from 120 to 180 members,
and immediately apportions 160 seats. A companion resolution is
Resolution No. 3 which permits Senators and Congressmen without
forfeiting their seats in Congress to be members of the Constitutional
Convention1 to be convened, as provided in another resolution
Resolution No. 2. Parenthetically, two of these proposed amendments to
the Constitution (Resolutions I and 3) are to be submitted to the people
for their ratification next November 14, 1967. Resolution No. 2 just
adverted to calls for a constitutional convention also to propose
amendments to the Constitution. The delegates thereto are to be elected
on the second Tuesday of November 1970; the convention to sit on June
1, 1971; and the amendments proposed by the convention to be submitted
to the people thereafter for their ratification.
Of importance now are the proposed amendments increasing the
number of members of the House of representatives under Resolution
No. 1, and that in Resolution No. 3 which gives Senators and Congressmen
the right to sit as members of the constitutional convention to be
convened on June 1, 1971. Because, these are the two amendments to be
submitted to the people in the general elections soon to be held on
November 14, 1967, upon the provisions of Section 1, Republic Act 4913,
which reads:
The amendments to the Constitution of the Philippines proposed
by the Congress of the Philippines in Resolutions of both Houses
Numbered One and Three, both adopted on March sixteen,
nineteen hundred and sixty- seven, shall be submitted to the
people for approval at the general election which shall be held on
November fourteen, nineteen hundred and sixty- seven, in
accordance with the provisions of this Act.
Republic Act 4913 projects the basic angle of the problem thrust upon us
the manner in which the amendments proposed by Congress just
adverted to be brought to the people's attention.
First, to the controlling constitutional precept. In order that proposed
amendments to the Constitution may become effective, Section 1, Article
XV thereof commands that such amendments must be "approved by a
majority of the votes cast at an election at which amendments are
submitted to the people for their ratification."2 The accent is on two
words complementing each other, namely, "submitted" and
"ratification."
1. We are forced to take a long hard look at the core of the problem
facing us. And this, because the amendments submitted are
transcendental and encompassing. The ceiling of the number of
Congressmen is sought to be elevated from 120 to 180 members; and
Senators and Congressmen may run in constitutional conventions
without forfeiting their seats. These certainly affect the people as a
whole. The increase in the number of Congressmen has its proportional
increase in the people's tax burdens. They may not look at this with favor,
what with the constitutional provision (Section 5, Article VI) that
Congress "shall by law make an apportionment", without the necessity of
disturbing the present constitutionally provided number of Congressmen.
People in Quezon City, for instance, may balk at the specific
apportionment of the 160 seats set forth in Resolution No. 1, and ask for a
Congressman of their own, on the theory of equal representation. And
then, people may question the propriety of permitting the increased 180
Congressmen from taking part in the forthcoming constitutional
convention and future conventions for fear that they may dominate its
proceedings. They may entertain the belief that, if at all, increase in the
number of Congressmen should be a proper topic for deliberation in a
constitutional convention which, anyway, will soon take place. They
probably would ask: Why the hurry? These ponderables require the
people's close scrutiny.
2. With these as backdrop, we perforce go into the philosophy behind the
constitutional directive that constitutional amendments be submitted to
the people for their ratification.
A constitutional amendment is not a temporary expedient. Unlike a
statute which may suffer amendments three or more times in the same
37
year, it is intended to stand the test of time. It is an expression of the
people's sovereign will.
And so, our approach to the problem of the mechanics of submission for
ratification of amendments is that reasoning on the basis of the spirit of
the Constitution is just as important as reasoning by a strict adherence to
the phraseology thereof. We underscore this, because it is within the
realm of possibility that a Constitution maybe overhauled. Supposing
three-fourths of the Constitution is to be amended. Or, the proposal is to
eliminate the all important; Bill of Rights in its entirety. We believe it to be
beyond debate that in some such situations the amendments ought to
call for a constitutional convention rather than a legislative proposal. And
yet, nothing there is in the books or in the Constitution itself. which
would require such amendments to be adopted by a constitutional
convention. And then, too, the spirit of the supreme enactment, we are
sure, forbids that proposals therefor be initiated by Congress and
thereafter presented to the people for their ratification.
In the context just adverted to, we take the view that the words
"submitted to the people for their ratification", if construed in the light of
the nature of the Constitution a fundamental charter that is legislation
direct from the people, an expression of their sovereign will is that
it can only be amended by the people expressing themselves according
to the procedure ordained by the Constitution. Therefore, amendments
must be fairly laid before the people for their blessing or spurning. The
people are not to be mere rubber stamps. They are not to vote blindly.
They must be afforded ample opportunity to mull over the original
provisions compare them with the proposed amendments, and try to
reach a conclusion as the dictates of their conscience suggest, free from
the incubus of extraneous or possibly in insidious influences. We believe,
the word "submitted" can only mean that the government, within its
maximum capabilities, should strain every effort to inform very citizen of
the provisions to be amended, and the proposed amendments and the
meaning, nature and effects thereof. By this, we are not to be
understood as saying that, if one citizen or 100 citizens or 1,000 citizens
cannot be reached, then there is no submission within the meaning of the
word as intended by the framers of the Constitution. What the
Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency
within its structural framework to enlighten the people, educate them
with respect to their act of ratification or rejection. For, as we have earlier
stated, one thing is submission and another is ratification. There must be
fair submission, intelligent, consent or rejection. If with all these
safeguards the people still approve the amendment no matter how
prejudicial it is to them, then so be it. For, the people decree their own
fate.
Aptly had it been said:
. . . The great men who builded the structure of our state in this
respect had the mental vision of a good Constitution voiced by
Judge Cooley, who has said "A good Constitution should beyond
the reach of temporary excitement and popular caprice or
passion. It is needed for stability and steadiness; it must yield to
the thought of the people; not to the whim of the people, or the
thought evolved the excitement or hot blood, but the sober
second thought, which alone, if the government is to be safe, can
be allowed efficiency. . . . Changes in government are to be feared
unless the benefit is certain. As Montaign says: "All great
mutations shake and disorder a state. Good does not necessarily
succeed evil; another evil may succeed and a worse." Am. Law Rev.
1889, p. 3113
3. Tersely put, the issue before us funnels down to this proposition: If the
people are not sufficiently informed of the amendments to be voted
upon, to conscientiously deliberate thereon, to express their will in a
genuine manner can it be said that in accordance with the constitutional
mandate, "the amendments are submitted to the people for their
ratification?" Our answer is "No".
We examine Republic Act 4913, approved on June 17, 1967 the statute
that submits to the people the constitutional amendments proposed by
Congress in Resolutions 1 and 3. Section 2 of the Act provides the manner
of propagation of the nature of the amendments throughout the country.
There are five parts in said Section 2, viz:
38
 (1) The amendment shall be published in three consecutive issues
of the Official Gazette at least twenty days prior to the election.
(2) A printed copy thereof shall be posted in a conspicuous place
in every municipality, city and provincial office building and in
every polling place not later than October fourteen, nineteen
hundred and sixty-seven, and shall remain posted therein until
after the election.
(3) At least five copies of the said amendments shall be kept in
each polling place to be made available for examination by the
qualified electors during election day.
(4) When practicable, copies in the principal native languages, as
may be determined by the Commission on Elections, shall be kept
in each polling place.
(5) The Commission on Elections shall make available copies of
said amendments in English, Spanish and, whenever practicable,
in the principal native languages, for free distribution.
A question that comes to mind is whether the procedure for
dissemination of information regarding the amendments effectively
brings the matter to the people. A dissection of the mechanics yields
disturbing thoughts. First, the Official Gazette is not widely read. It does
not reach the barrios. And even if it reaches the barrios, is it available to
all? And if it is, would all under stand English? Second, it should be
conceded that many citizens, especially those in the outlying barrios, do
not go to municipal, city and/or provincial office buildings, except on
special occasions like paying taxes or responding to court summonses.
And if they do, will they notice the printed amendments posted on the
bulletin board? And if they do notice, such copy again is in English (sample
submitted to this Court by the Solicitor General) for, anyway, the statute
does not require that it be in any other language or dialect. Third, it would
not help any if at least five copies are kept in the polling place for
examination by qualified electors during election day. As petitioner puts
it, voting time is not study time. And then, who can enter the polling
place, except those who are about to vote? Fourth, copies in the principal
native languages shall be kept in each polling place. But this is not, as
Section 2 itself implies, in the nature of a command because such copies
shall be kept therein only "when practicable" and "as may be determined
by the Commission on Elections." Even if it be said that these are available
before election, a citizen may not intrude into the school building where
the polling places are usually located without disturbing the school
classes being held there. Fifth, it is true that the Comelec is directed to
make available copies of such amendments in English, Spanish or
whenever practicable, in the principal native languages, for free
distribution. However, Comelec is not required to actively distribute them
to the people. This is significant as to people in the provinces, especially
those in the far-flung barrios who are completely unmindful of the
discussions that go on now and then in the cities and centers of
population on the merits and demerits of the amendments. Rather,
Comelec, in this case, is but a passive agency which may hold copies
available, but which copies may not be distributed at all. Finally, it is of
common knowledge that Comelec has more than its hands full in these
pre-election days. They cannot possibly make extensive distribution.
Voters will soon go to the polls to say "yes" or "no". But even the official
sample ballot submitted to this Court would show that only the
amendments are printed at the back. And this, in pursuance to Republic
Act 4913 itself.
Surely enough, the voters do not have the benefit of proper notice of the
proposed amendments thru dissemination by publication in extenso.
People do not have at hand the necessary data on which to base their
stand on the merits and demerits of said amendments.
We, therefore, hold that there is no proper submission of the proposed
constitutional amendments within the meaning and intendment of
Section 1, Article XV of the Constitution.
4. Contemporary history is witness to the fact that during the present
election campaign the focus is on the election of candidates. The
constitutional amendments are crowded out. Candidates on the
homestretch, and their leaders as well as the voters, gear their undivided
efforts to the election of officials; the constitutional amendments cut no
39
ice with them. The truth is that even in the ballot itself, the space
accorded to the casting of "yes" or "no" vote would give one the
impression that the constitutional amendments are but a bootstrap to
the electoral ballot. Worse still, the fortunes of many elective officials, on
the national and local levels, are inextricably intertwined with the results
of the votes on the plebiscite. In a clash between votes for a candidate
and conscience on the merits and demerits of the constitutional
amendments, we are quite certain that it is the latter that will be dented.
5. That proper submission of amendments to the people to enable them
to equally ratify them properly is the meat of the constitutional
requirement, is reflected in the sequence of uniform past practices. The
Constitution had been amended thrice in 1939, 1940 and 1947. In each
case, the amendments were embodied in resolutions adopted by the
Legislature, which thereafter fixed the dates at which the proposed
amendments were to be ratified or rejected. These plebiscites have been
referred to either as an "election" or "general election". At no time,
however, was the vote for the amendments of the Constitution held
simultaneously with the election officials, national or local. Even with
regard to the 1947 parity amendment; the record shows that the sole
issue was the 1947 parity amendment; and the special elections
simultaneously held in only three provinces, Iloilo, Pangasinan and
Bukidnon, were merely incidental thereto.
In the end we say that the people are the last ramparts that guard against
indiscriminate changes in the Constitution that is theirs. Is it too much to
ask that reasonable guarantee be made that in the matter of the
alterations of the law of the land, their true voice be heard? The answer
perhaps is best expressed in the following thoughts: "It must be
remembered that the Constitution is the people's enactment. No proposed
change can become effective unless they will it so through the compelling
force of need of it and desire for it."4
For the reasons given, our vote is that Republic Act 4913 must be stricken
down as in violation of the Constitution.
Zaldivar and Castro, JJ., concur.
Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.
REYES, J.B.L., J., concurring:
I concur in the result with the opinion penned by Mr. Justice Sanchez. To
approve a mere proposal to amend the Constitution requires (Art. XV) a
three-fourths (3/4) vote of all the members of each legislative chamber, the
highest majority ever demanded by the fundamental charter, one higher
even than that required in order to declare war (Sec. 24, Article VI), with all
its dire consequences. If such an overwhelming majority, that was evidently
exacted in order to impress upon all and sundry the seriousness of every
constitutional amendment, is asked for a proposal to amend the
Constitution, I find it impossible to believe that it was ever intended by its
framers that such amendment should be submitted and ratified by just "a
majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification", if the concentration of the
people's attention thereon to be diverted by other extraneous issues, such
as the choice of local and national officials. The framers of the Constitution,
aware of the fundamental character thereof, and of the need of giving it as
much stability as is practicable, could have only meant that any
amendments thereto should be debated, considered and voted upon at an
election wherein the people could devote undivided attention to the
subject. That this was the intention and the spirit of the provision is
corroborated in the case of all other constitutional amendments in the past,
that were submitted to and approved in special elections exclusively
devoted to the issue whether the legislature's amendatory proposals should
be ratified or not.
Dizon, Angeles, Zaldivar and Castro, JJ., concur.
40
 Republic of the Philippines MAKASIAR, J.:
SUPREME COURT
Manila These two separate but related petitions for declaratory relief were filed
pursuant to Sec. 19 of R.A. No. 6132 by petitioners Manuel B. Imbong and
EN BANC Raul M. Gonzales, both members of the Bar, taxpayers and interested in
running as candidates for delegates to the Constitutional Convention.
Both impugn the constitutionality of R.A. No. 6132, claiming during the
oral argument that it prejudices their rights as such candidates. After the
G.R. No. L-32432 September 11, 1970 Solicitor General had filed answers in behalf the respondents, hearings
were held at which the petitioners and the amici curiae, namely Senator
MANUEL B. IMBONG, petitioner, Lorenzo Taada, Senator Arturo Tolentino, Senator Jovito Salonga, and
vs. Senator Emmanuel Pelaez argued orally.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR
MILAFLOR, as members thereof, respondents. It will be recalled that on March 16, 1967, Congress, acting as a
Constituent Assembly pursuant to Art. XV of the Constitution, passed
G.R. No. L-32443 September 11, 1970 Resolution No. 2 which among others called for a Constitutional
Convention to propose constitutional amendments to be composed of
IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT two delegates from each representative district who shall have the same
REGARDING THE VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN AS qualifications as those of Congressmen, to be elected on the second
THE CONSTITUTIONAL CONVENTION ACT OF 1970. RAUL M. GONZALES, Tuesday of November, 1970 in accordance with the Revised Election
petitioner, Code.
vs.
COMELEC, respondent. After the adoption of said Res. No. 2 in 1967 but before the November
elections of that year, Congress, acting as a legislative body, enacted
Manuel B. Imbong in his own behalf. Republic Act No. 4914 implementing the aforesaid Resolution No. 2 and
practically restating in toto the provisions of said Resolution No. 2.
Raul M. Gonzales in his own behalf.
On June 17, 1969, Congress, also acting as a Constituent Assembly, passed
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor Resolution No. 4 amending the aforesaid Resolution No. 2 of March 16,
General Ricardo L. Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. 1967 by providing that the convention "shall be composed of 320
Pardo, Rosalio A. de Leon, Vicente A. Torres and Guillermo C. Nakar for delegates apportioned among the existing representative districts
respondents. according to the number of their respective inhabitants: Provided, that a
representative district shall be entitled to at least two delegates, who
Lorenzo Taada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as shall have the same qualifications as those required of members of the
amici curiae. House of Representatives,"1 "and that any other details relating to the
specific apportionment of delegates, election of delegates to, and the
holding of, the Constitutional Convention shall be embodied in an

41
implementing legislation: Provided, that it shall not be inconsistent with
the provisions of this Resolution."2
On August 24, 1970, Congress, acting as a legislative body, enacted
Republic Act No. 6132, implementing Resolutions Nos. 2 and 4, and
expressly repealing R.A. No.
4914.3
Petitioner Raul M. Gonzales assails the validity of the entire law as well as
the particular provisions embodied in Sections 2, 4, 5, and par. 1 of 8(a).
Petitioner Manuel B. Imbong impugns the constitutionality of only par. I
of Sec. 8(a) of said R.A. No. 6132 practically on the same grounds
advanced by petitioner Gonzales.
I election of delegates and for the operation of the
The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers
and employees, whether elective or appointive, including members of the
Armed Forces of the Philippines, as well as officers and employees of
corporations or enterprises of the government, as resigned from the date
of the filing of their certificates of candidacy, was recently sustained by
this Court, on the grounds, inter alia, that the same is merely an
application of and in consonance with the prohibition in Sec. 2 of Art. XII
of the Constitution and that it does not constitute a denial of due process
or of the equal protection of the law. Likewise, the constitutionality of
paragraph 2 of Sec. 8(a) of R.A. No. 6132 was upheld.4
II
Without first considering the validity of its specific provisions, we sustain
the constitutionality of the enactment of R.A. No. 6132 by Congress acting
as a legislative body in the exercise of its broad law-making authority, and
not as a Constituent Assembly, because
1. Congress, when acting as a Constituent Assembly
pursuant to Art. XV of the Constitution, has full and
plenary authority to propose Constitutional amendments
or to call a convention for the purpose, by a three-fourths
vote of each House in joint session assembled but voting
separately. Resolutions Nos. 2 and 4 calling for a
constitutional convention were passed by the required
three-fourths vote.
2. The grant to Congress as a Constituent Assembly of
such plenary authority to call a constitutional convention
includes, by virtue of the doctrine of necessary
implication, all other powers essential to the effective
exercise of the principal power granted, such as the
power to fix the qualifications, number, apportionment,
and compensation of the delegates as well as
appropriation of funds to meet the expenses for the
Constitutional Convention itself, as well as all other
implementing details indispensable to a fruitful
convention. Resolutions Nos. 2 and 4 already embody the
above-mentioned details, except the appropriation of
funds.
3. While the authority to call a constitutional convention is
vested by the present Constitution solely and exclusively
in Congress acting as a Constituent Assembly, the power
to enact the implementing details, which are now
contained in Resolutions Nos. 2 and 4 as well as in R.A.
No. 6132, does not exclusively pertain to Congress acting
as a Constituent Assembly. Such implementing details are
matters within the competence of Congress in the
exercise of its comprehensive legislative power, which
power encompasses all matters not expressly or by
necessary implication withdrawn or removed by the
Constitution from the ambit of legislative action. And as
lone as such statutory details do not clash with any
specific provision of the constitution, they are valid.
4. Consequently, when Congress, acting as a Constituent
Assembly, omits to provide for such implementing details
42
 after calling a constitutional convention, Congress, acting
as a legislative body, can enact the necessary
implementing legislation to fill in the gaps, which
authority is expressly recognized in Sec. 8 of Res No. 2 as
amended by Res. No. 4.
5. The fact that a bill providing for such implementing
details may be vetoed by the President is no argument
against conceding such power in Congress as a legislative
body nor present any difficulty; for it is not irremediable
as Congress can override the Presidential veto or
Congress can reconvene as a Constituent Assembly and
adopt a resolution prescribing the required implementing
details.
III
Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of
delegates is not in accordance with proportional representation and
therefore violates the Constitution and the intent of the law itself,
without pinpointing any specific provision of the Constitution with which
it collides.
Unlike in the apportionment of representative districts, the Constitution
does not expressly or impliedly require such apportionment of delegates
to the convention on the basis of population in each congressional
district. Congress, sitting as a Constituent Assembly, may constitutionally
allocate one delegate for, each congressional district or for each
province, for reasons of economy and to avoid having an unwieldy
convention. If the framers of the present Constitution wanted the
apportionment of delegates to the convention to be based on the
number of inhabitants in each representative district, they would have
done so in so many words as they did in relation to the apportionment of
the representative districts.5
The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly
conflict with its own intent expressed therein; for it merely obeyed and
implemented the intent of Congress acting as a Constituent Assembly
expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates
should be apportioned among the existing representative districts
according to the number of their respective inhabitants, but fixing a
minimum of at least two delegates for a representative district. The
presumption is that the factual predicate, the latest available official
population census, for such apportionment was presented to Congress,
which, accordingly employed a formula for the necessary computation to
effect the desired proportional representation.
The records of the proceedings on Senate Bill No. 77 sponsored by
Senator Pelaez which is now R.A. No. 6132, submitted to this Tribunal by
the amici curiae, show that it based its apportionment of the delegates
on the 1970 official preliminary population census taken by the Bureau of
Census and Statistics from May 6 to June 30, 1976; and that Congress
adopted the formula to effect a reasonable apportionment of delegates.
The Director of the Bureau of Census and Statistics himself, in a letter to
Senator Pelaez dated July 30, 1970, stated that "on the basis of the
preliminary count of the population, we have computed the distribution
of delegates to the Constitutional Convention based on Senate Bill 77 (p.
2 lines 5 to 32 and p. 3 line 12) which is a fair and an equitable method of
distributing the delegates pursuant to the provisions of the joint
Resolution of both Houses No. 2, as amended. Upon your request at the
session of the Senate-House Conference Committee meeting last night,
we are submitting herewith the results of the computation on the basis
of the above-stated method."
Even if such latest census were a preliminary census, the same could still
be a valid basis for such apportionment.6 The fact that the lone and small
congressional district of Batanes, may be over-represented, because it is
allotted two delegates by R.A. No. 6132 despite the fact that it has a
population very much less than several other congressional districts, each
of which is also allotted only two delegates, and therefore under-
represented, vis-a-vis Batanes alone, does not vitiate the apportionment
as not effecting proportional representation. Absolute proportional
apportionment is not required and is not possible when based on the
number of inhabitants, for the population census cannot be accurate nor
complete, dependent as it is on the diligence of the census takers,
aggravated by the constant movement of population, as well as daily
43
death and birth. It is enough that the basis employed is reasonable and
the resulting apportionment is substantially proportional. Resolution No.
4 fixed a minimum of two delegates for a congressional district.
While there may be other formulas for a reasonable apportionment
considering the evidence submitted to Congress by the Bureau of Census
and Statistics, we are not prepared to rule that the computation formula
adopted by, Congress for proportional representation as, directed in Res.
No. 4 is unreasonable and that the apportionment provided in R.A. No.
6132 does not constitute a substantially proportional representation.
In the Macias case, relied on by petitioner Gonzales, the apportionment
law, which was nullified as unconstitutional, granted more
representatives to a province with less population than the provinces
with more inhabitants. Such is not the case here, where under Sec. 2 of
R.A. No. 6132 Batanes is allotted only two delegates, which number is
equal to the number of delegates accorded other provinces with more
population. The present petitions therefore do not present facts which fit
the mould of the doctrine in the case of Macias et al. vs. Comelec, supra.
The impossibility of absolute proportional representation is recognized by
the Constitution itself when it directs that the apportionment of
congressional districts among the various provinces shall be "as nearly as
may be according to their respective inhabitants, but each province shall
have at least one member" (Sec. 5, Art. VI, Phil. Const., emphasis
supplied). The employment of the phrase "as nearly as may be according
to their respective inhabitants" emphasizes the fact that the human mind
can only approximate a reasonable apportionment but cannot effect an
absolutely proportional representation with mathematical precision or
exactitude.
IV
Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue
deprivation of liberty without due process of law and denies the equal
protection of the laws. Said Sec. 5 disqualifies any elected delegate from
running "for any public office in any election" or from assuming "any
appointive office or position in any branch of the government
government until after the final adjournment of the Constitutional
Convention."
That the citizen does not have any inherent nor natural right to a public
office, is axiomatic under our constitutional system. The State through its
Constitution or legislative body, can create an office and define the
qualifications and disqualifications therefor as well as impose inhibitions
on a public officer. Consequently, only those with qualifications and who
do not fall under any constitutional or statutory inhibition can be validly
elected or appointed to a public office. The obvious reason for the
questioned inhibition, is to immunize the delegates from the perverting
influence of self-interest, party interest or vested interest and to insure
that he dedicates all his time to performing solely in the interest of the
nation his high and well nigh sacred function of formulating the supreme
law of the land, which may endure for generations and which cannot
easily be changed like an ordinary statute. With the disqualification
embodied in Sec. 5, the delegate will not utilize his position as a
bargaining leverage for concessions in the form of an elective or
appointive office as long as the convention has not finally adjourned. The
appointing authority may, by his appointing power, entice votes for his
own proposals. Not love for self, but love for country must always
motivate his actuations as delegate; otherwise the several provisions of
the new Constitution may only satisfy individual or special interests,
subversive of the welfare of the general citizenry. It should be stressed
that the disqualification is not permanent but only temporary only to
continue until the final adjournment of the convention which may not
extend beyond one year. The convention that framed the present
Constitution finished its task in approximately seven months from July
30, 1934 to February 8, 1935.
As admitted by petitioner Gonzales, this inhibition finds analogy in the
constitutional provision prohibiting a member of Congress, during the
time for which he was elected, from being appointed to any civil office
which may have been created or the emolument whereof shall have been
increased while he was a member of the Congress. (Sec. 16, Art. VI, Phil.
Constitution.)
44
As observed by the Solicitor General in his Answer, the overriding
objective of the challenged disqualification, temporary in nature, is to
compel the elected delegates to serve in full their term as such and to
devote all their time to the convention, pursuant to their representation
and commitment to the people; otherwise, his seat in the convention will
be vacant and his constituents will be deprived of a voice in the
convention. The inhibition is likewise "designed to prevent popular
political figures from controlling elections or positions. Also it is a brake
on the appointing power, to curtail the latter's desire to 'raid' the
convention of "talents" or attempt to control the convention." (p. 10,
Answer in L-32443.)
Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is
a valid limitation on the right to public office pursuant to state police
power as it is reasonable and not arbitrary.
The discrimination under Sec. 5 against delegates to the Constitutional
Convention is likewise constitutional; for it is based on a substantial
distinction which makes for real differences, is germane to the purposes
of the law, and applies to all members of the same class.7 The function of
a delegate is more far-reaching and its effect more enduring than that of
any ordinary legislator or any other public officer. A delegate shapes the
fundamental law of the land which delineates the essential nature of the
government, its basic organization and powers, defines the liberties of
the people, and controls all other laws. Unlike ordinary statutes,
constitutional amendments cannot be changed in one or two years. No
other public officer possesses such a power, not even the members of
Congress unless they themselves, propose constitutional amendments
when acting as a Constituent Assembly pursuant to Art. XV of the
Constitution. The classification, therefore, is neither whimsical nor
repugnant to the sense of justice of the community.
As heretofore intimated, the inhibition is relevant to the object of the
law, which is to insure that the proposed amendments are meaningful to
the masses of our people and not designed for the enhancement of
selfishness, greed, corruption, or injustice.
Lastly, the disqualification applies to all the delegates to the convention
who will be elected on the second Tuesday of November, 1970.
V
Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as
violative of the constitutional guarantees of due process, equal
protection of the laws, freedom of expressions, freedom of assembly and
freedom of association.
This Court ruled last year that the guarantees of due process, equal
protection of the laws, peaceful assembly, free expression, and the right
of association are neither absolute nor illimitable rights; they are always
subject to the pervasive and dormant police power of the State and may
be lawfully abridged to serve appropriate and important public
interests.8
In said Gonzalez vs. Comelec case the Court applied the clear and present
danger test to determine whether a statute which trenches upon the
aforesaid Constitutional guarantees, is a legitimate exercise of police
power.9
Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:
1. any candidate for delegate to the convention
(a) from representing, or
(b) allowing himself to be represented as
being a candidate of any political party or
any other organization; and
2. any political party, political group, political committee,
civic, religious, professional or other organizations or
organized group of whatever nature from
45
 (a) intervening in the nomination of any
such candidate or in the filing of his
certificate, or
(b) from giving aid or support directly or
indirectly, material or otherwise, favorable
to or against his campaign for election.
The ban against all political parties or organized groups of whatever
nature contained in par. 1 of Sec. 8(a), is confined to party or organization
support or assistance, whether material, moral, emotional or otherwise.
The very Sec. 8(a) in its provisos permits the candidate to utilize in his
campaign the help of the members of his family within the fourth civil
degree of consanguinity or affinity, and a campaign staff composed of
not more than one for every ten precincts in his district. It allows the full
exercise of his freedom of expression and his right to peaceful assembly,
because he cannot be denied any permit to hold a public meeting on the
pretext that the provision of said section may or will be violated. The
right of a member of any political party or association to support him or
oppose his opponent is preserved as long as such member acts
individually. The very party or organization to which he may belong or
which may be in sympathy with his cause or program of reforms, is
guaranteed the right to disseminate information about, or to arouse
public interest in, or to advocate for constitutional reforms, programs,
policies or constitutional proposals for amendments.
It is therefore patent that the restriction contained in Sec. 8(a) is so
narrow that the basic constitutional rights themselves remain
substantially intact and inviolate. And it is therefore a valid infringement
of the aforesaid constitutional guarantees invoked by petitioners.
In the aforesaid case of Gonzales vs. Comelec, supra, this Court
unanimously sustained the validity of the limitation on the period for
nomination of candidates in Sec. 50-A of R.A. No. 4880, thus:
The prohibition of too early nomination of candidates
presents a question that is not too formidable in
character. According to the act: "It shall be unlawful for
any political party, political committee, or political group
to nominate candidates for any elective public office
voted for at large earlier than one hundred and fifty days
immediately preceding an election, and for any other
elective public office earlier than ninety days immediately
preceding an election.
The right of association is affected. Political parties have
less freedom as to the time during which they may
nominate candidates; the curtailment is not such,
however, as to render meaningless such a basic right.
Their scope of legitimate activities, save this one, is not
unduly narrowed. Neither is there infringement of their
freedom to assemble. They can do so, but not for such a
purpose. We sustain its validity. We do so unanimously. 10
In said Gonzales vs. Comelec case, this Court likewise held that the period
for the conduct of an election campaign or partisan political activity may
be limited without offending the aforementioned constitutional
guarantees as the same is designed also to prevent a "clear and present
danger of a substantive evil, the debasement of the electoral process." 11
Even if the partisan activity consists of (a) forming organizations,
associations, clubs, committees or other group of persons for the
purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a party or candidate; (b) holding political
conventions, caucuses, conferences, meetings, rallies, parades or other
similar assemblies for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against any candidate or party; and
(c) giving, soliciting, or receiving contributions for election campaign
either directly or indirectly, (Sec. 50-B, pars. (a), (b), and (c), R.A. 4880),
the abridgment was still affirmed as constitutional by six members of this
Court, which could not "ignore ... the legislative declaration that its
enactment was in response to a serious substantive evil affecting the
electoral process, not merely in danger of happening, but actually in
existence, and likely to continue unless curbed or remedied. To assert
otherwise would be to close one's eyes to the reality of the situation." 12;
46
Likewise, because four members dissented, this Court in said case of
Gonzales vs. Comelec, supra, failed to muster the required eight votes to
declare as unconstitutional the limitation on the period for (a) making
speeches, announcements or commentaries or holding interviews for or
against the election of any party or candidate for public office; (b)
publishing or distributing campaign literature or materials; and (e)
directly or indirectly soliciting votes and/or undertaking any campaign or
propaganda for or against any candidate or party specified in Sec. 50-B,
pars. (c), (d) & (e) of R.A. 4880. 13
The debasement of the electoral process as a substantive evil exists today
and is one of the major compelling interests that moved Congress into
prescribing the total ban contained in par. 1 of Sec. 8(a) of R.A. No. 6132,
to justify such ban. In the said Gonzales vs. Comelec case, this Court gave
"due recognition to the legislative concern to cleanse, and if possible,
render spotless, the electoral process," 14 impressed as it was by the
explanation made by the author of R.A. No. 4880, Sen. Lorenzo Taada,
who appeared as amicus curiae, "that such provisions were deemed by
the legislative body to be part and parcel of the necessary and
appropriate response not merely to a clear and present danger but to the
actual existence of a grave and substantive evil of excessive partisanship,
dishonesty and corruption as well as violence that of late has marred
election campaigns and partisan political activities in this country. He did
invite our attention likewise to the well-settled doctrine that in the choice
of remedies for an admitted malady requiring governmental action, on
the legislature primarily rests the responsibility. Nor should the cure
prescribed by it, unless clearly repugnant to fundamental rights, be
ignored or disregarded." 15
But aside from the clear and imminent danger of the debasement of the
electoral process, as conceded by Senator Pelaez, the basic motivation,
according to Senate Majority Floor Leader Senator Arturo Tolentino, the
sponsor of the Puyat-Tolentino amendment embodied in par. 1 of Sec.
8(a) of R.A. No. 6132, is to assure the candidates equal protection of the
laws by according them equality of chances. 16 The primary purpose of
the prohibition then is also to avert the clear and present danger of
another substantive evil, the denial of the equal protection of the laws.
The candidates must depend on their individual merits and not on the
support of political parties or organizations. Senator Tolentino and
Senator Salonga emphasized that under this provision, the poor
candidate has an even chance as against the rich candidate. We are not
prepared to disagree with them, because such a conclusion, predicated as
it is on empirical logic, finds support in our recent political history and
experience. Both Senators stressed that the independent candidate who
wins in the election against a candidate of the major political parties, is a
rare phenomenon in this country and the victory of an independent
candidate mainly rests on his ability to match the resources, financial and
otherwise, of the political parties or organizations supporting his
opponent. This position is further strengthened by the principle that the
guarantee of social justice under Sec. V, Art. II of the Constitution,
includes the guarantee of equal opportunity, equality of political rights,
and equality before the law enunciated by Mr. Justice Tuazon in the case
Guido vs. Rural Progress Administration. 17
While it may be true that a party's support of a candidate is not wrong
per se it is equally true that Congress in the exercise of its broad law-
making authority can declare certain acts as mala prohibita when justified
by the exigencies of the times. One such act is the party or organization
support proscribed in Sec. 8(a),which ban is a valid limitation on the
freedom of association as well as expression, for the reasons aforestated.
Senator Tolentino emphasized that "equality of chances may be better
attained by banning all organization support." 18
The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-
of-interest test. 19
In the apt words of the Solicitor General:
It is to be noted that right now the nation is on the
threshold of rewriting its Constitution in a hopeful
endeavor to find a solution to the grave economic, social
and political problems besetting the country. Instead of
directly proposing the amendments Congress has chosen
to call a Constitutional Convention which shall have the
task of fashioning a document that shall embody the
47
 aspirations and ideals of the people. Because what is to
be amended is the fundamental law of the land, it is
indispensable that the Constitutional Convention be
composed of delegates truly representative of the
people's will. Public welfare demands that the delegates
should speak for the entire nation, and their voices be not
those of a particular segment of the citizenry, or of a
particular class or group of people, be they religious,
political, civic or professional in character. Senator Pelaez,
Chairman of the Senate Committee on Codes and
Constitutional Amendments, eloquently stated that "the
function of a constitution is not to represent anyone in
interest or set of interests, not to favor one group at the
expense or disadvantage of the candidates but to
encompass all the interests that exist within our society
and to blend them into one harmonious and balanced
whole. For the constitutional system means, not the
predominance of interests, but the harmonious balancing
thereof."
So that the purpose for calling the Constitutional
Convention will not be deflated or frustrated, it is
necessary that the delegatee thereto be independent,
beholden to no one but to God, country and conscience.
xxx xxx xxx
The evil therefore, which the law seeks to prevent lies in
the election of delegates who, because they have been
chosen with the aid and resources of organizations,
cannot be expected to be sufficiently representative of
the people. Such delegates could very well be the
spokesmen of narrow political, religious or economic
interest and not of the great majority of the people. 20
We likewise concur with the Solicitor General that the equal protection of
the laws is not unduly subverted in par. I of Sec. 8(a); because it does not
create any hostile discrimination against any party or group nor does it
confer undue favor or privilege on an individual as heretofore stated. The
discrimination applies to all organizations, whether political parties or
social, civic, religious, or professional associations. The ban is germane to
the objectives of the law, which are to avert the debasement of the
electoral process, and to attain real equality of chances among individual
candidates and thereby make real the guarantee of equal protection of
the laws.
The political parties and the other organized groups have built-in
advantages because of their machinery and other facilities, which, the
individual candidate who is without any organization support, does not
have. The fact that the other civic of religious organizations cannot have a
campaign machinery as efficient as that of a political party, does not vary
the situation; because it still has that much built-in advantage as against
the individual candidate without similar support. Moreover, these civic
religious and professional organization may band together to support
common candidates, who advocates the reforms that these
organizations champion and believe are imperative. This is admitted by
petitioner Gonzales thru the letter of Senator Ganzon dated August 17,
1970 attached to his petition as Annex "D", wherein the Senator stated
that his own "Timawa" group had agreed with the Liberal Party in Iloilo to
support petitioner Gonzales and two others as their candidates for the
convention, which organized support is nullified by the questioned ban,
Senator Ganzon stressed that "without the group moving and working in
joint collective effort" they cannot "exercise effective control and
supervision over our
leaders the Women's League, the area commanders, etc."; but with
their joining with the LP's they "could have presented a solid front with
very bright chances of capturing all seats."
The civic associations other than political parties cannot with reason insist
that they should be exempted from the ban; because then by such
exemption they would be free to utilize the facilities of the campaign
machineries which they are denying to the political parties. Whenever all
organization engages in a political activity, as in this campaign for election
of delegates to the Constitutional Convention, to that extent it partakes
of the nature of a political organization. This, despite the fact that the
Constitution and by laws of such civic, religious, or professional
48
associations usually prohibit the association from engaging in partisan
political activity or supporting any candidate for an elective office. Hence,
they must likewise respect the ban.
The freedom of association also implies the liberty not to associate or join
with others or join any existing organization. A person may run
independently on his own merits without need of catering to a political
party or any other association for support. And he, as much as the
candidate whose candidacy does not evoke sympathy from any political
party or organized group, must be afforded equal chances. As
emphasized by Senators Tolentino and Salonga, this ban is to assure
equal chances to a candidate with talent and imbued with patriotism as
well as nobility of purpose, so that the country can utilize their services if
elected.
Impressed as We are by the eloquent and masterly exposition of Senator
Taada for the invalidation of par. 1 of Sec. 8(a) of R.A. No. 6132,
demonstrating once again his deep concern for the preservation of our
civil liberties enshrined in the Bill of Rights, We are not persuaded to
entertain the belief that the challenged ban transcends the limits of
constitutional invasion of such cherished immunities.
WHEREFORE, the prayers in both petitions are hereby denied and R.A.
No. 6132 including Secs. 2, 4, 5, and 8(a), paragraph 1, thereof, cannot be
declared unconstitutional. Without costs.
Reyes, J.B.L., Dizon and Castro, JJ., concur.
Makalintal, J., concurs in the result.
Teehankee, J., is on leave.
Separate Opinions
FERNANDO, J., concurring and dissenting:
The opinion of Justice Makasiar speaking for the Court, comprehensive in
scope, persuasive in character and lucid in expression, has much to
recommend it. On the whole, I concur. I find difficulty, however, in
accepting the conclusion that there is no basis for the challenge hurled
against the validity of this provision: "No candidate for delegate to the
Convention shall represent or allow himself to be represented as being a
candidate of any political party or any other organization, and no political
party, political group, political committee, civic, religious, professional, or
other organization or organized group of whatever nature shall intervene
in the nomination of any such candidate or in the filing of his certificate of
candidacy or give aid or support directly or indirectly, material or
otherwise, favorable to or against his campaign for election: ..."1 It is with
regret then that I dissent from that portion of the decision.
1. I find it difficult to reconcile the decision reached insofar as the
aforesaid ban on political parties and civic, professional and other
organizations is concerned with the explicit provision that the freedom to
form associations or societies for purposes not contrary to law shall not
be abridged.2 The right of an individual to join others of a like persuasion
to pursue common objectives and to engage in activities is embraced
within if not actually encouraged by the regime of liberty ordained by the
Constitution. This particular freedom has an indigenous cast, its origin
being traceable to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such
character, it is the view of Justice Douglas, in a 1963 article, that it is
primarily the First Amendment of her Constitution, which safeguards
freedom of speech and of the press, of assembly and of petition "that
provides [associations] with the protection they need if they are to
remain viable and continue to contribute to our Free Society."3 Such is
indeed the case, for five years earlier the American Supreme Court had
already declared: "It is beyond debate that freedom to engage in
49
association for the advancement of beliefs and ideas is an inseparable
aspect of the "liberty" [embraced in] freedom of speech."4
Not long after, in 1965, Justice Douglas as; spokesman for the American
Supreme Court could elaborate further on the scope of the right of
association as including "the right to express one's attitudes or
philosophies by membership in a group or by affiliation with it or by other
lawful means, Association in that context is a form of expression of
opinion; and while it is not extremely included in the First Amendment its
existence is necessary in making the express guarantees fully
meaningful."5 Thus is further vitalized freedom of expression which, for
Justice Laurel, is at once the instrument" and the guarantee and the
bright consummate flower of all liberty"6 and, for Justice Cardozo, "the
matrix, the indispensable condition of nearly every other form of
freedom."7
2. It is in the light of the above fundamental postulates that I find merit in
the plea of petitioners to annul the challenged provision. There is much to
be said for the point emphatically stressed by Senator Lorenzo M.
Taada, as amicus curiae, to the effect that there is nothing unlawful in a
candidate for delegate to the Convention representing or allowing
himself to be represented as such of any political party or any other
organization as well as of such political party, political group, political
committee, civic, religious, professional or other organization or
organized group intervening in his nomination, in the filing of his
certificate of candidacy, or giving aid or support, directly or indirectly,
material or otherwise, favorable to or against his campaign for election as
such delegate. I find the conclusion inescapabe therefore, that what the
constitutional provisions in question allow, more specifically the right to
form associations, is prohibited. The infirmity of the ban is thus apparent
on its face.
There is, to my mind, another avenue of approach that leads to the same
conclusion. The final proviso in the same section of the Act forbids any
construction that would in any wise "impair or abridge the freedom of
civic, political, religious, professional, trade organizations or organized
groups of whatever nature to disseminate information about, or arouse
public interest in, the forthcoming Constitutional Convention, or to
advocate constitutional reforms, programs, policies or proposals for
amendment of the present Constitution, and no prohibition contained
herein shall limit or curtail the right of their members, as long as they act
individually, to support or oppose any candidate for delegate to the
Constitutional Convention."8 It is regrettable that such an explicit
recognition of what cannot be forbidden consistently with the
constitutional guarantees of freedom of expression and freedom of
association falls short of according full respect to what is thus
commanded, by the fundamental law, as they are precluded by the very
same Act from giving aid or support precisely to the very individuals who
can carry out whatever constitutional reforms, programs, policies or
proposals for amendment they might advocate. As thus viewed, the
conviction I entertain as to its lack of validity is further strengthened and
fortified.
3. It would be a different matter, of course, if there is a clear and present
danger of a substantive evil that would justify a limitation on such
cherished freedoms. Reference has been made to Gonzales v. Commission
on Elections.9 As repression is permissible only when the danger of
substantive evil is present is explained by Justice Branders thus: ... the evil
apprehended is to imminent that it may befall before there is opportunity
for full discussion. If there be time to expose through discussion the
falsehood and fallacies, to avert the evil by the processes of education,
the remedy to be applied is more speech, not enforced silence. For him
the apprehended evil must be "relatively serious." For "[prohibition] of
free speech and assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively trivial harm to
society." Justice Black would go further. He would require that the
substantive evil be "extremely serious." Only thus may there be a
realization of the ideal envisioned by Cardozo: "There shall be no
compromise of the freedom to think one's thoughts and speak them,
except at those extreme borders where thought merges into action." It
received its original formulation from Holmes. Thus: "The question in
every case is whether the words used in such circumstances are of such a
nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent. It is a question
of proximity and degree." " 10 The majority of the Court would find the
50
existence of a clear and present danger of debasing the electoral process.
With due respect, I find myself unable to share such a view.
The assumption would, appear to be that there is a clear and present
danger of a grave substantive evil of partisanship running riot unless
political parties are thus restrained. There would be a sacrifice then of the
national interest involved. The Convention might not be able to live up to
the high hopes entertained for an improvement of the fundamental law.
It would appear though that what prompted such a ban is to assure that
the present majority party would not continue to play its dominant role in
the political life of the nation. The thought is entertained that otherwise,
we will not have a Convention truly responsive to the needs of the hour
and of the future insofar as they may be anticipated.
To my mind, this is to lose sight of the fact that in the national elections
of 1946, 1953, 1961 and 1965, the presidency was won by the opposition
candidate. Moreover, in national elections for senators alone, that of
1951, to mention only one instance, saw a complete sweep of the field by
the then minority party. It would be unjustifiable, so I am led to believe to
assume that inevitably the prevailing dominant political party would
continue its ascendancy in the coming Convention.
Then, too, the result of the plebiscite in the two proposed amendments
in 1967 indicate unmistakably that the people can, if so minded, make
their wishes prevail. There is thus no assurance that the mere
identification with party labels would automatically insure the success of
a candidacy. Even if it be assumed that to guard against the evils of party
spirit carried to excess, such a ban is called for, still no such danger is
presented by allowing civil, professional or any other organization or
organized group of whatever nature to field its own candidates or give
aid or support, directly or indirectly material or otherwise, to anyone
running for the Convention. From such a source, no such misgivings or
apprehension need arise. Nor it the fear that organizations could hastily
be assembled or put up to camouflage their true colors as satellites of the
political parties be valid. The electorate can see through such schemes
and can emphatically register its reaction. There is, moreover, the further
safeguard that whatever work the Convention may propose is ultimately
subject to popular ratification.
For me then the danger of a substantive evil is neither clear nor present.
What causes me grave concern is that to guard against such undesirable
eventuality, which may not even come to pass, a flagrant disregard of
what the Constitution ordains is minimized. A desirable end cannot be
coerced by unconstitutional means.
4. It is not easy to yield assent to the proposition that on a matter so
essentially political as the amendment or revision of an existing
Constitution, political parties or political groups are to be denied the
opportunity of launching the candidacy of their choice. Well has it been
said by Chief Justice Hughes: "The greater the importance of
safeguarding the community from incitements to the overthrow of our
institutions by force and violence, the more imperative is the need to
preserve inviolate the constitutional rights of free speech, free press and
free assembly in order to maintain the opportunity for free political
discussion, to the end that government may be responsive to the will of
the people and that changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the very foundation of
constitutional government." 11 It is to carry this essential process one
step farther to recognize and to implement the right of every political
party or group to select the candidates who, by their election, could
translate into actuality their hopes for the fundamental law that the times
demand. Moreover, is it not in keeping with the rights to intellectual
freedom so sedulously safeguarded by the Constitution to remove all
obstacles to organized civic groups making their influence felt in the task
of constitution framing, the result of which has momentuous implications
for the nation? What is decisive of this aspect of the matter is not the
character of the association or organized group as such but the
essentially political activity thus carried out.
This is not to deny the wide latitude as to the choice of means vested in
Congress to attain a desirable goal. Nor can it be successfully argued that
the judiciary should display reluctance in extending sympathy and
understanding to such legislative determination. This is merely to stress
that however worthwhile the objective, the Constitution must still be
paid deference. Moreover, it may not be altogether unrealistic to
consider the practical effects of the ban as thus worded as not lacking in
effectivity insofar as civic, religious, professional or other organizations or
51
organized group is concerned, but not necessarily so in the case of
political party, political group or political committee. There is the
commendable admission by Senator Tolentino, appearing as amicus
curiae, that the political leaders of stature, in their individual capacity,
could continue to assert their influence. It could very well happen, then,
in not a few cases, assuming the strength of political parties, that a
candidate thus favored is sure of emerging the victor. What is thus
sought to be accomplished to guard against the evil of party spirit
prevailing could very well be doomed to futility. The high hopes
entertained by the articulate and vocal groups of young people,
intellectuals and workers, may not be realized. The result would be that
this unorthodox and novel provision could assume the character of a
tease, an illusion like a munificent bequest in a pauper's will.
If such an appraisal is not unjustifiably tinged with pessimism, then, to my
mind, a radical approach to a problem possibly tainted with constitutional
infirmity cannot hurdle the judicial test as to its validity. It is one thing to
encourage a fresh and untried solution to a problem of gravity when the
probability of its success may be assumed. It is an entirely different
matter to cut down the exercise of what otherwise are undeniable
constitutional rights, when as in this case, the outcome might belie
expectations. Considering the well-settled principle that even though the
governmental process be legitimate and substantial, they cannot be
pursued by means that broadly stifle fundamental personal liberties, if
the end can be narrowly achieved, I am far from being persuaded that to
preclude political parties or other groups or associations from lending aid
and support to the candidates of men in whom they can repose their
trust is consistent with the constitutional rights of freedom of association
and freedom of expression. Here, the danger of overbreadth, so clear and
manifest as to be offensive to constitutional standards, magnified by the
probability that the result would be the failure and not success of the
statutory scheme, cautions against the affixing of the imprimatur of
judicial approval to the challenged provision.
5. Necessarily then, from this mode of viewing the matter, it would follow
that the holding of this Court in Gonzales v. Comelec 12 does not compel
the conclusion reached by the majority sustaining the validity of this
challenged provision. What survived the test of constitutional validity in
that case, with the Court unanimous in its opinion, is the prohibition for
any political party, political committee or political group to nominate
candidates for any elective public office voted for at large earlier than 150
days immediately preceding election and for any other public office
earlier than 90 days immediately preceding such election. 13 A corollary to
the above limitation, the provision making it unlawful for any person,
whether or not a voter or candidate, or for any group or association of
persons, whether or not a political party or political committee, to
engage in an election campaign or partisan political activity except during
the above periods successfully hurdled, the constitutional test, although
the restrictions as to the making of speeches, announcements or
commentaries or holding interviews for or against the election of any
party or candidate for public office or the publishing or distributing of
campaign literature or materials or the solicitation or undertaking any
campaign or propaganda for or against any candidate or party, directly or
indirectly, survived by the narrow margin of one vote, four members of
this Court unable to discern any constitutional infirmity as against the free
speech guarantee, thus resulting in failing to muster the necessary two-
thirds majority for a declaration of invalidity. Insofar as election campaign
or partisan political activity would limit or restrict the formation, of
organizations, associations, clubs, committees or other groups of persons
for the purpose of soliciting votes or undertaking any campaign or
propaganda for or against a party or candidate or, the giving, soliciting, or
receiving a contribution for election campaign purposes, either directly or
indirectly as well as the holding of political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies, with a
similar and in view, only five members of this Court, a minority thereof
voted, for their unconstitutionality. What emerges clearly, then, is that
definite acts short of preventing the political parties from the choice of
their candidates and thereafter working for them in effect were
considered by this Court as not violative of the constitutional freedoms of
speech, of press, of assembly and of association.
The challenged provision in these two petitions, however, goes much
farther. Political parties or any other organization or organized group are
precluded from selecting and supporting candidates for delegates to the
Constitutional Convention. To my mind, this is to enter a forbidden
domain, Congress trespassing on a field hitherto rightfully assumed to be
52
within the sphere of liberty. Thus, I am unable to conclude that our
previous decision in Gonzales v. Commission on Elections which already
was indicative of the cautious and hesitant judicial approach to lending its
approval to what otherwise are invasions of vital constitutional
safeguards to freedoms of belief, of expression, and of association lends
support to the decision reached by the majority insofar as this challenged
provision is concerned.
Hence my inability to subscribe in its entirety to the opinion of the Court. I
am authorized to state that the Chief Justice is in agreement with the
views herein expressed.
Concepcion, C.J., Villamor and Zaldivar, JJ., concur.
BARREDO, J., concurring and dissenting:
Without prejudice to a more extended opinion, I vote, in concurrence
with the majority, to sustain the validity of the provisions of Republic Act
6132 impugned by petitioners in these cases, except Section 4 and the
portion of Section 8(a) referring to political parties. As regards Section 4,
I reiterate my separate opinion in the cases of Subido and others. (G.R.
Nos. L-32436 and L-32439) With respect to Section 8(a), I hold that the
considerations which take the restraint on the freedoms of association,
assembly and speech involved in the ban on political parties to nominate
and support their own candidates, reasonable and within the limits of the
Constitution do not obtain when it comes to civic or non-political
organizations. As I see it, the said ban, insofar as civic or non-political
organizations are concerned, is a deceptive device to preserve the built-in
advantages of political parties while at the same time crippling
completely the other kinds of associations. The only way to accomplish
the purported objective of the law of equalizing the forces that will
campaign in behalf of the candidates to the constitutional convention is
to maintain said ban only as against political parties, for after all, only the
activities and manners of operation of these parties and/or some of their
members have made necessary the imposition thereof. Under the
resulting set up embodied in the provision in question, the individual
candidates who have never had any political party connections or very
little of it would be at an obvious disadvantage unless they are allowed to
seek and use the aid of civic organizations. Neither the elaborate
provisions of Republic Act 6132 regarding methods of campaign nor its
other provisions intended to minimize the participation of political parties
in the electorate processes of voting, counting of the votes and
canvassing of the results can overcome the advantages of candidates
more or less connected with political parties, particularly the major and
established ones, as long as the right to form other associations and the
right of these associations to campaign for their candidates are denied
considering particularly the shortness of the time that is left between
now and election day.
The issues involved in the coming elections are grave and fundamental
ones that are bound to affect the lives, rights and liberties of all the
people of this country most effectively, pervasively and permanently. The
only insurance of the people against political parties which may be
inclined towards the Establishment and the status quo is to organize
themselves to gain much needed strength and effectivity. To deny them
this right is to stifle the people's only opportunity for change.
It is axiomatic that issues, no matter how valid, if not related to particular
candidates in an organized way, similarly as in the use of platforms by
political parties, cannot have any chance of support and final adoption.
Both men and issues are important, but unrelated to each other, each of
them alone is insignificant, and the only way to relate them is by
organization. Precisely because the issues in this election of candidates
are of paramount importance second to none, it is imperative that all of
the freedoms enshrined in the constitution should have the ampliest
recognition for those who are minded to actively battle for them and any
attempt to curtail them would endanger the very purposes for which a
new constitutional convention has been conceived.
Consistently with my separate opinion in the case of Gonzales and Cabigao
vs. Comelec, G.R. No. L-27833, April 18, 1969 and for the reasons therein
stated, I maintain that the right of suffrage which is the cornerstone of
any democracy like ours is meaningless when the right to campaign in any
election therein is unreasonably and unnecessarily curtailed, restrained or
hampered, as is being done under the statute in dispute.
53
It is, of course, understood that this opinion is based on my considered
view, contrary to that of the majority, that as Section 8(a) stands and
taking into account its genesis, the ban against political parties is
separable from that against other associations within the contemplation
of Section 21 of the Act which expressly refers to the separability of the
application thereof to any "persons, groups or circumstances."
I reserve my right to expand this explanation of my vote in the next few
days.
# Separate Opinions
FERNANDO, J., concurring and dissenting:
The opinion of Justice Makasiar speaking for the Court, comprehensive in
scope, persuasive in character and lucid in expression, has much to
recommend it. On the whole, I concur. I find difficulty, however, in
accepting the conclusion that there is no basis for the challenge hurled
against the validity of this provision: "No candidate for delegate to the
Convention shall represent or allow himself to be represented as being a
candidate of any political party or any other organization, and no political
party, political group, political committee, civic, religious, professional, or
other organization or organized group of whatever nature shall intervene
in the nomination of any such candidate or in the filing of his certificate of
candidacy or give aid or support directly or indirectly, material or
otherwise, favorable to or against his campaign for election: ..."1 It is with
regret then that I dissent from that portion of the decision.
1. I find it difficult to reconcile the decision reached insofar as the
aforesaid ban on political parties and civic, professional and other
organizations is concerned with the explicit provision that the freedom to
form associations or societies for purposes not contrary to law shall not
be abridged.2 The right of an individual to join others of a like persuasion
to pursue common objectives and to engage in activities is embraced
within if not actually encouraged by the regime of liberty ordained by the
Constitution. This particular freedom has an indigenous cast, its origin
being traceable to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such
character, it is the view of Justice Douglas, in a 1963 article, that it is
primarily the First Amendment of her Constitution, which safeguards
freedom of speech and of the press, of assembly and of petition "that
provides [associations] with the protection they need if they are to
remain viable and continue to contribute to our Free Society."3 Such is
indeed the case, for five years earlier the American Supreme Court had
already declared: "It is beyond debate that freedom to engage in
association for the advancement of beliefs and ideas is an inseparable
aspect of the "liberty" [embraced in] freedom of speech."4
Not long after, in 1965, Justice Douglas as; spokesman for the American
Supreme Court could elaborate further on the scope of the right of
association as including "the right to express one's attitudes or
philosophies by membership in a group or by affiliation with it or by other
lawful means, Association in that context is a form of expression of
opinion; and while it is not extremely included in the First Amendment its
existence is necessary in making the express guarantees fully
meaningful."5 Thus is further vitalized freedom of expression which, for
Justice Laurel, is at once the instrument" and the guarantee and the
bright consummate flower of all liberty"6 and, for Justice Cardozo, "the
matrix, the indispensable condition of nearly every other form of
freedom."7
2. It is in the light of the above fundamental postulates that I find merit in
the plea of petitioners to annul the challenged provision. There is much to
be said for the point emphatically stressed by Senator Lorenzo M.
Taada, as amicus curiae, to the effect that there is nothing unlawful in a
candidate for delegate to the Convention representing or allowing
himself to be represented as such of any political party or any other
organization as well as of such political party, political group, political
committee, civic, religious, professional or other organization or
organized group intervening in his nomination, in the filing of his
54
certificate of candidacy, or giving aid or support, directly or indirectly,
material or otherwise, favorable to or against his campaign for election as
such delegate. I find the conclusion inescapabe therefore, that what the
constitutional provisions in question allow, more specifically the right to
form associations, is prohibited. The infirmity of the ban is thus apparent
on its face.
There is, to my mind, another avenue of approach that leads to the same
conclusion. The final proviso in the same section of the Act forbids any
construction that would in any wise "impair or abridge the freedom of
civic, political, religious, professional, trade organizations or organized
groups of whatever nature to disseminate information about, or arouse
public interest in, the forthcoming Constitutional Convention, or to
advocate constitutional reforms, programs, policies or proposals for
amendment of the present Constitution, and no prohibition contained
herein shall limit or curtail the right of their members, as long as they act
individually, to support or oppose any candidate for delegate to the
Constitutional Convention."8 It is regrettable that such an explicit
recognition of what cannot be forbidden consistently with the
constitutional guarantees of freedom of expression and freedom of
association falls short of according full respect to what is thus
commanded, by the fundamental law, as they are precluded by the very
same Act from giving aid or support precisely to the very individuals who
can carry out whatever constitutional reforms, programs, policies or
proposals for amendment they might advocate. As thus viewed, the
conviction I entertain as to its lack of validity is further strengthened and
fortified.
3. It would be a different matter, of course, if there is a clear and present
danger of a substantive evil that would justify a limitation on such
cherished freedoms. Reference has been made to Gonzales v. Commission
on Elections.9 As repression is permissible only when the danger of
substantive evil is present is explained by Justice Branders thus: ... the evil
apprehended is to imminent that it may befall before there is opportunity
for full discussion. If there be time to expose through discussion the
falsehood and fallacies, to avert the evil by the processes of education,
the remedy to be applied is more speech, not enforced silence. For him
the apprehended evil must be "relatively serious." For "[prohibition] of
free speech and assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively trivial harm to
society." Justice Black would go further. He would require that the
substantive evil be "extremely serious." Only thus may there be a
realization of the ideal envisioned by Cardozo: "There shall be no
compromise of the freedom to think one's thoughts and speak them,
except at those extreme borders where thought merges into action." It
received its original formulation from Holmes. Thus: "The question in
every case is whether the words used in such circumstances are of such a
nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent. It is a question
of proximity and degree." " 10 The majority of the Court would find the
existence of a clear and present danger of debasing the electoral process.
With due respect, I find myself unable to share such a view.
The assumption would, appear to be that there is a clear and present
danger of a grave substantive evil of partisanship running riot unless
political parties are thus restrained. There would be a sacrifice then of the
national interest involved. The Convention might not be able to live up to
the high hopes entertained for an improvement of the fundamental law.
It would appear though that what prompted such a ban is to assure that
the present majority party would not continue to play its dominant role in
the political life of the nation. The thought is entertained that otherwise,
we will not have a Convention truly responsive to the needs of the hour
and of the future insofar as they may be anticipated.
To my mind, this is to lose sight of the fact that in the national elections
of 1946, 1953, 1961 and 1965, the presidency was won by the opposition
candidate. Moreover, in national elections for senators alone, that of
1951, to mention only one instance, saw a complete sweep of the field by
the then minority party. It would be unjustifiable, so I am led to believe to
assume that inevitably the prevailing dominant political party would
continue its ascendancy in the coming Convention.
Then, too, the result of the plebiscite in the two proposed amendments
in 1967 indicate unmistakably that the people can, if so minded, make
their wishes prevail. There is thus no assurance that the mere
identification with party labels would automatically insure the success of
55
a candidacy. Even if it be assumed that to guard against the evils of party
spirit carried to excess, such a ban is called for, still no such danger is
presented by allowing civil, professional or any other organization or
organized group of whatever nature to field its own candidates or give
aid or support, directly or indirectly material or otherwise, to anyone
running for the Convention. From such a source, no such misgivings or
apprehension need arise. Nor it the fear that organizations could hastily
be assembled or put up to camouflage their true colors as satellites of the
political parties be valid. The electorate can see through such schemes
and can emphatically register its reaction. There is, moreover, the further
safeguard that whatever work the Convention may propose is ultimately
subject to popular ratification.
For me then the danger of a substantive evil is neither clear nor present.
What causes me grave concern is that to guard against such undesirable
eventuality, which may not even come to pass, a flagrant disregard of
what the Constitution ordains is minimized. A desirable end cannot be
coerced by unconstitutional means.
4. It is not easy to yield assent to the proposition that on a matter so
essentially political as the amendment or revision of an existing
Constitution, political parties or political groups are to be denied the
opportunity of launching the candidacy of their choice. Well has it been
said by Chief Justice Hughes: "The greater the importance of
safeguarding the community from incitements to the overthrow of our
institutions by force and violence, the more imperative is the need to
preserve inviolate the constitutional rights of free speech, free press and
free assembly in order to maintain the opportunity for free political
discussion, to the end that government may be responsive to the will of
the people and that changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the very foundation of
constitutional government." 11 It is to carry this essential process one
step farther to recognize and to implement the right of every political
party or group to select the candidates who, by their election, could
translate into actuality their hopes for the fundamental law that the times
demand. Moreover, is it not in keeping with the rights to intellectual
freedom so sedulously safeguarded by the Constitution to remove all
obstacles to organized civic groups making their influence felt in the task
of constitution framing, the result of which has momentuous implications
for the nation? What is decisive of this aspect of the matter is not the
character of the association or organized group as such but the
essentially political activity thus carried out.
This is not to deny the wide latitude as to the choice of means vested in
Congress to attain a desirable goal. Nor can it be successfully argued that
the judiciary should display reluctance in extending sympathy and
understanding to such legislative determination. This is merely to stress
that however worthwhile the objective, the Constitution must still be
paid deference. Moreover, it may not be altogether unrealistic to
consider the practical effects of the ban as thus worded as not lacking in
effectivity insofar as civic, religious, professional or other organizations or
organized group is concerned, but not necessarily so in the case of
political party, political group or political committee. There is the
commendable admission by Senator Tolentino, appearing as amicus
curiae, that the political leaders of stature, in their individual capacity,
could continue to assert their influence. It could very well happen, then,
in not a few cases, assuming the strength of political parties, that a
candidate thus favored is sure of emerging the victor. What is thus
sought to be accomplished to guard against the evil of party spirit
prevailing could very well be doomed to futility. The high hopes
entertained by the articulate and vocal groups of young people,
intellectuals and workers, may not be realized. The result would be that
this unorthodox and novel provision could assume the character of a
tease, an illusion like a munificent bequest in a pauper's will.
If such an appraisal is not unjustifiably tinged with pessimism, then, to my
mind, a radical approach to a problem possibly tainted with constitutional
infirmity cannot hurdle the judicial test as to its validity. It is one thing to
encourage a fresh and untried solution to a problem of gravity when the
probability of its success may be assumed. It is an entirely different
matter to cut down the exercise of what otherwise are undeniable
constitutional rights, when as in this case, the outcome might belie
expectations. Considering the well-settled principle that even though the
governmental process be legitimate and substantial, they cannot be
pursued by means that broadly stifle fundamental personal liberties, if
the end can be narrowly achieved, I am far from being persuaded that to
56
preclude political parties or other groups or associations from lending aid
and support to the candidates of men in whom they can repose their
trust is consistent with the constitutional rights of freedom of association
and freedom of expression. Here, the danger of overbreadth, so clear and
manifest as to be offensive to constitutional standards, magnified by the
probability that the result would be the failure and not success of the
statutory scheme, cautions against the affixing of the imprimatur of
judicial approval to the challenged provision.
5. Necessarily then, from this mode of viewing the matter, it would follow
that the holding of this Court in Gonzales v. Comelec 12 does not compel
the conclusion reached by the majority sustaining the validity of this
challenged provision. What survived the test of constitutional validity in
that case, with the Court unanimous in its opinion, is the prohibition for
any political party, political committee or political group to nominate
candidates for any elective public office voted for at large earlier than 150
days immediately preceding election and for any other public office
earlier than 90 days immediately preceding such election. 13 A corollary to
the above limitation, the provision making it unlawful for any person,
whether or not a voter or candidate, or for any group or association of
persons, whether or not a political party or political committee, to
engage in an election campaign or partisan political activity except during
the above periods successfully hurdled, the constitutional test, although
the restrictions as to the making of speeches, announcements or
commentaries or holding interviews for or against the election of any
party or candidate for public office or the publishing or distributing of
campaign literature or materials or the solicitation or undertaking any
campaign or propaganda for or against any candidate or party, directly or
indirectly, survived by the narrow margin of one vote, four members of
this Court unable to discern any constitutional infirmity as against the free
speech guarantee, thus resulting in failing to muster the necessary two-
thirds majority for a declaration of invalidity. Insofar as election campaign
or partisan political activity would limit or restrict the formation, of
organizations, associations, clubs, committees or other groups of persons
for the purpose of soliciting votes or undertaking any campaign or
propaganda for or against a party or candidate or, the giving, soliciting, or
receiving a contribution for election campaign purposes, either directly or
indirectly as well as the holding of political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies, with a
similar and in view, only five members of this Court, a minority thereof
voted, for their unconstitutionality. What emerges clearly, then, is that
definite acts short of preventing the political parties from the choice of
their candidates and thereafter working for them in effect were
considered by this Court as not violative of the constitutional freedoms of
speech, of press, of assembly and of association.
The challenged provision in these two petitions, however, goes much
farther. Political parties or any other organization or organized group are
precluded from selecting and supporting candidates for delegates to the
Constitutional Convention. To my mind, this is to enter a forbidden
domain, Congress trespassing on a field hitherto rightfully assumed to be
within the sphere of liberty. Thus, I am unable to conclude that our
previous decision in Gonzales v. Commission on Elections which already
was indicative of the cautious and hesitant judicial approach to lending its
approval to what otherwise are invasions of vital constitutional
safeguards to freedoms of belief, of expression, and of association lends
support to the decision reached by the majority insofar as this challenged
provision is concerned.
Hence my inability to subscribe in its entirety to the opinion of the Court. I
am authorized to state that the Chief Justice is in agreement with the
views herein expressed.
Concepcion, C.J., Villamor and Zaldivar, JJ., concur.
BARREDO, J., concurring and dissenting:
Without prejudice to a more extended opinion, I vote, in concurrence
with the majority, to sustain the validity of the provisions of Republic Act
6132 impugned by petitioners in these cases, except Section 4 and the
portion of Section 8(a) referring to political parties. As regards Section 4,
I reiterate my separate opinion in the cases of Subido and others. (G.R.
Nos. L-32436 and L-32439) With respect to Section 8(a), I hold that the
considerations which take the restraint on the freedoms of association,
assembly and speech involved in the ban on political parties to nominate
and support their own candidates, reasonable and within the limits of the
57
Constitution do not obtain when it comes to civic or non-political
organizations. As I see it, the said ban, insofar as civic or non-political
organizations are concerned, is a deceptive device to preserve the built-in
advantages of political parties while at the same time crippling
completely the other kinds of associations. The only way to accomplish
the purported objective of the law of equalizing the forces that will
campaign in behalf of the candidates to the constitutional convention is
to maintain said ban only as against political parties, for after all, only the
activities and manners of operation of these parties and/or some of their
members have made necessary the imposition thereof. Under the
resulting set up embodied in the provision in question, the individual
candidates who have never had any political party connections or very
little of it would be at an obvious disadvantage unless they are allowed to
seek and use the aid of civic organizations. Neither the elaborate
provisions of Republic Act 6132 regarding methods of campaign nor its
other provisions intended to minimize the participation of political parties
in the electorate processes of voting, counting of the votes and
canvassing of the results can overcome the advantages of candidates
more or less connected with political parties, particularly the major and
established ones, as long as the right to form other associations and the
right of these associations to campaign for their candidates are denied
considering particularly the shortness of the time that is left between
now and election day.
are of paramount importance second to none, it is imperative that all of
the freedoms enshrined in the constitution should have the ampliest
recognition for those who are minded to actively battle for them and any
attempt to curtail them would endanger the very purposes for which a
new constitutional convention has been conceived.
Consistently with my separate opinion in the case of Gonzales and Cabigao
vs. Comelec, G.R. No. L-27833, April 18, 1969 and for the reasons therein
stated, I maintain that the right of suffrage which is the cornerstone of
any democracy like ours is meaningless when the right to campaign in any
election therein is unreasonably and unnecessarily curtailed, restrained or
hampered, as is being done under the statute in dispute.
It is, of course, understood that this opinion is based on my considered
view, contrary to that of the majority, that as Section 8(a) stands and
taking into account its genesis, the ban against political parties is
separable from that against other associations within the contemplation
of Section 21 of the Act which expressly refers to the separability of the
application thereof to any "persons, groups or circumstances."
I reserve my right to expand this explanation of my vote in the next few
days.

The issues involved in the coming elections are grave and fundamental
ones that are bound to affect the lives, rights and liberties of all the
people of this country most effectively, pervasively and permanently. The
only insurance of the people against political parties which may be
inclined towards the Establishment and the status quo is to organize
themselves to gain much needed strength and effectivity. To deny them
this right is to stifle the people's only opportunity for change.

It is axiomatic that issues, no matter how valid, if not related to particular

candidates in an organized way, similarly as in the use of platforms by
political parties, cannot have any chance of support and final adoption.
Both men and issues are important, but unrelated to each other, each of
them alone is insignificant, and the only way to relate them is by
organization. Precisely because the issues in this election of candidates
58
 Republic of the Philippines eighteen years "shall be, submitted" for ratification by the people
SUPREME COURT pursuant to Organic Resolution No. 1 of the Constitutional Convention of
Manila 1971, and the subsequent implementing resolutions, by declaring said
resolutions to be without the force and effect of law in so far as they
EN BANC direct the holding of such plebiscite and by also declaring the acts of the
respondent Commission (COMELEC) performed and to be done by it in
obedience to the aforesaid Convention resolutions to be null and void, for
being violative of the Constitution of the Philippines.
G.R. No. L-34150 October 16, 1971
As a preliminary step, since the petition named as respondent only the
ARTURO M. TOLENTINO, petitioner, COMELEC, the Count required that copies thereof be served on the
vs. Solicitor General and the Constitutional Convention, through its
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE President, for such action as they may deem proper to take. In due time,
AUDITOR, and THE DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL respondent COMELEC filed its answer joining issues with petitioner. To
CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS G. BARRERA, further put things in proper order, and considering that the fiscal officers
PABLO S. TRILLANA III, VICTOR DE LA SERNA, MARCELO B. FERNAN, of the Convention are indispensable parties in a proceeding of this
JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and nature, since the acts sought to be enjoined involve the expenditure of
JUAN V. BORRA, Intervenors. funds appropriated by law for the Convention, the Court also ordered
that the Disbursing Officer, Chief Accountant and Auditor of the
Arturo M. Tolentino in his own behalf. Convention be made respondents. After the petition was so amended,
the first appeared thru Senator Emmanuel Pelaez and the last two thru
Ramon A. Gonzales for respondents Chief Accountant and Auditor of the Delegate Ramon Gonzales. All said respondents, thru counsel, resist
1971 Constitutional Convention. petitioner's action.

Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent
Disbursing Officer of the 1971 Constitutional Convention.
Intervenors in their own behalf.
BARREDO, J.:
Petition for prohibition principally to restrain the respondent Commission
on Elections "from undertaking to hold a plebiscite on November 8, 1971,"
at which the proposed constitutional amendment "reducing the voting
age" in Section 1 of Article V of the Constitution of the Philippines to
For reasons of orderliness and to avoid unnecessary duplication of
arguments and even possible confusion, and considering that with the
principal parties being duly represented by able counsel, their interests
would be adequately protected already, the Court had to limit the
number of intervenors from the ranks of the delegates to the Convention
who, more or less, have legal interest in the success of the respondents,
and so, only Delegates Raul S. Manglapus, Jesus G. Barrera, Pablo S.
Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo
Siguion Reyna, Victor Ortega and Juan B. Borra, all distinguished lawyers
in their own right, have been allowed to intervene jointly. The Court feels
that with such an array of brilliant and dedicated counsel, all interests
involved should be duly and amply represented and protected. At any
rate, notwithstanding that their corresponding motions for leave to
intervene or to appear as amicus curiae 1 have been denied, the pleadings
59
filed by the other delegates and some private parties, the latter in
representation of their minor children allegedly to be affected by the
result of this case with the records and the Court acknowledges that they
have not been without value as materials in the extensive study that has
been undertaken in this case.
The background facts are beyond dispute. The Constitutional Convention
of 1971 came into being by virtue of two resolutions of the Congress of
the Philippines approved in its capacity as a constituent assembly
convened for the purpose of calling a convention to propose
amendments to the Constitution namely, Resolutions 2 and 4 of the joint
sessions of Congress held on March 16, 1967 and June 17, 1969
respectively. The delegates to the said Convention were all elected under
and by virtue of said resolutions and the implementing legislation
thereof, Republic Act 6132. The pertinent portions of Resolution No 2
read as follows:
SECTION 1. There is hereby called a convention to propose
amendments to the Constitution of the Philippines, to be
composed of two elective Delegates from each
representative district who shall have the same
qualifications as those required of Members of the House
of Representatives.
xxx xxx xxx
SECTION 7. The amendments proposed by the Convention
shall be valid and considered part of the Constitution
when approved by a majority of the votes cast in an
election at which they are submitted to the people for
their ratification pursuant to Article XV of the
Constitution.
Resolution No. 4 merely modified the number of delegates to represent
the different cities and provinces fixed originally in Resolution No 2.
After the election of the delegates held on November 10, 1970, the
Convention held its inaugural session on June 1, 1971. Its preliminary
labors of election of officers, organization of committees and other
preparatory works over, as its first formal proposal to amend the
Constitution, its session which began on September 27, 1971, or more
accurately, at about 3:30 in the morning of September 28, 1971, the
Convention approved Organic Resolution No. 1 reading thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE V
OF THE CONSTITUTION OF THE PHILIPPINES SO AS TO
LOWER THE VOTING AGE TO 18
BE IT RESOLVED as it is hereby resolved by the 1971
Constitutional Convention:
Section 1. Section One of Article V of the Constitution of
the Philippines is amended to as follows:
Section 1. Suffrage may be exercised by
(male) citizens of the Philippines not
otherwise disqualified by law, who are
(twenty-one) EIGHTEEN years or over and
are able to read and write, and who shall
have resided in the Philippines for one
year and in the municipality wherein they
propose to vote for at least six months
preceding the election.
Section 2. This amendment shall be valid as part of the
Constitution of the Philippines when approved by a
majority of the votes cast in a plebiscite to coincide with
the local elections in November 1971.
Section 3. This partial amendment, which refers only to
the age qualification for the exercise of suffrage shall be
60
 without prejudice to other amendments that will be (
proposed in the future by the 1971 Constitutional S
Convention on other portions of the amended Section or g
on other portions of the entire Constitution. d
.
Section 4. The Convention hereby authorizes the use of )
the sum of P75,000.00 from its savings or from its
unexpended funds for the expense of the advanced D
plebiscite; provided, however that should there be no I
savings or unexpended sums, the Delegates waive O
P250.00 each or the equivalent of 2-1/2 days per diem. S
D
By a letter dated September 28, 1971, President Diosdado Macapagal, A
called upon respondent Comelec "to help the Convention implement (the D
above) resolution." The said letter reads: O

September 28, 1971 P

.
The Commission on Elections Manila
M
Thru the Chairman A
C
Gentlemen: A
P
Last night the Constitutional Convention passed A
Resolution No. 1 quoted as follows: G
A
xxx xxx xxx L

(see above) D
I
O
Pursuant to the provision of Section 14, Republic Act No.
S
6132 otherwise known as the Constitutional Convention
D
Act of 1971, may we call upon you to help the Convention
A
implement this resolution:
D
O
Sincerely,

61
 P distribute its official and sample ballots to be used in the
. elections on November 8, 1971.

M What happened afterwards may best be stated by quoting from

A intervenors' Governors' statement of the genesis of the above proposal:
C
A The President of the Convention also issued an order
P forming an Ad Hoc Committee to implement the
A Resolution.
G
A This Committee issued implementing guidelines which
L were approved by the President who then transmitted
them to the Commission on Elections.
P
r The Committee on Plebiscite and Ratification filed a
e report on the progress of the implementation of the
s plebiscite in the afternoon of October 7,1971, enclosing
i copies of the order, resolution and letters of transmittal
d above referred to (Copy of the report is hereto attached
e as Annex 8-Memorandum).
n
t RECESS RESOLUTION

On September 30, 1971, COMELEC "RESOLVED to inform the
Constitutional Convention that it will hold the plebiscite on condition
that:
(a) The Constitutional Convention will undertake the
printing of separate official ballots, election returns and
tally sheets for the use of said plebiscite at its expense;
(b) The Constitutional Convention will adopt its own
security measures for the printing and shipment of said
ballots and election forms; and
In its plenary session in the evening of October 7, 1971, the
Convention approved a resolution authored by Delegate
Antonio Olmedo of Davao Oriental, calling for a recess of
the Convention from November 1, 1971 to November 9,
1971 to permit the delegates to campaign for the
ratification of Organic Resolution No. 1. (Copies of the
resolution and the transcript of debate thereon are
hereto attached as Annexes 9 and 9-A Memorandum,
respectively).
RESOLUTION CONFIRMING IMPLEMENTATION

(c) Said official ballots and election forms will be delivered On October 12, 1971, the Convention passed Resolution
to the Commission in time so that they could be No. 24 submitted by Delegate Jose Ozamiz confirming the
distributed at the same time that the Commission will
62
 authority of the President of the Convention to
implement Organic Resolution No. 1, including the
creation of the Ad Hoc Committee ratifying all acts
performed in connection with said implementation.
Upon these facts, the main thrust of the petition is that Organic
Resolution No. 1 and the other implementing resolutions thereof
subsequently approved by the Convention have no force and effect as
laws in so far as they provide for the holding of a plebiscite co-incident
with the elections of eight senators and all city, provincial and municipal
officials to be held on November 8, 1971, hence all of Comelec's acts in
obedience thereof and tending to carry out the holding of the plebiscite
directed by said resolutions are null and void, on the ground that the
calling and holding of such a plebiscite is, by the Constitution, a power
lodged exclusively in Congress, as a legislative body, and may not be
exercised by the Convention, and that, under Section 1, Article XV of the
Constitution, the proposed amendment in question cannot be presented
to the people for ratification separately from each and all of the other
amendments to be drafted and proposed by the Convention. On the
other hand, respondents and intervenors posit that the power to provide
for, fix the date and lay down the details of the plebiscite for the
ratification of any amendment the Convention may deem proper to
propose is within the authority of the Convention as a necessary
consequence and part of its power to propose amendments and that this
power includes that of submitting such amendments either individually or
jointly at such time and manner as the Convention may direct in
discretion. The Court's delicate task now is to decide which of these two
poses is really in accord with the letter and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question
of jurisdiction. They contend that the issue before Us is a political
question and that the Convention being legislative body of the highest
order is sovereign, and as such, its acts impugned by petitioner are
beyond the control of the Congress and the courts. In this connection, it
is to be noted that none of the respondent has joined intervenors in this
posture. In fact, respondents Chief Accountant and Auditor of the
convention expressly concede the jurisdiction of this Court in their
answer acknowledging that the issue herein is a justifiable one.
Strangely, intervenors cite in support of this contention portions of the
decision of this Court in the case of Gonzales v. Comelec, 21 SCRA 774,
wherein the members of the Court, despite their being divided in their
opinions as to the other matters therein involved, were precisely
unanimous in upholding its jurisdiction. Obviously, distinguished counsel
have either failed to grasp the full impact of the portions of Our decision
they have quoted or would misapply them by taking them out of context.
There should be no more doubt as to the position of this Court regarding
its jurisdiction vis-a-vis the constitutionality of the acts of the Congress,
acting as a constituent assembly, and, for that matter, those of a
constitutional convention called for the purpose of proposing
amendments to the Constitution, which concededly is at par with the
former. A simple reading of Our ruling in that very case of Gonzales relied
upon by intervenors should dispel any lingering misgivings as regards that
point. Succinctly but comprehensively, Chief Justice Concepcion held for
the Court thus: .
As early as Angara vs. Electoral Commission (63 Phil. 139,
157), this Court speaking through one of the leading
members of the Constitutional Convention and a
respected professor of Constitutional Law, Dr. Jose P.
Laurel declared that "the judicial department is the
only constitutional organ which can be called upon to
determine the proper allocation of powers between the
several departments and among the integral or
constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra), this Court
characterizing the issue submitted thereto as a political
one declined to pass upon the question whether or not a
given number of votes cast in Congress in favor of a
proposed amendment to the Constitution which was
being submitted to the people for ratification satisfied
the three-fourths vote requirement of the fundamental
law. The force of this precedent has been weakened,
however, by Suanes v. Chief Accountant of the Senate (81
Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949),
63
Taada v. Cuenco, (L-10520, Feb. 28, 1957) and Macias v.
Commission on Elections, (L-18684, Sept. 14, 1961). In the
first we held that the officers and employees of the
Senate Electoral Tribunal are under its supervision and
control, not of that of the Senate President, as claimed by
the latter; in the second, this Court proceeded to
determine the number of Senators necessary for quorum
in the Senate; in the third, we nullified the election, by
Senators belonging to the party having the largest
number of votes in said chamber, purporting to act, on
behalf of the party having the second largest number of
votes therein of two (2) Senators belonging to the first
party, as members, for the second party, of the Senate
Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to
apportion the representatives districts for the House of
Representatives, upon the ground that the
apportionment had not been made as may be possible
according to the number of inhabitants of each province.
Thus we rejected the theory, advanced in these four (4)
cases that the issues therein raised were political
questions the determination of which is beyond judicial
review.
Indeed, the power to amend the Constitution or to
propose amendments thereto is not included in the
general grant of legislative powers to Congress (Section 1,
Art. VI, Constitution of the Philippines). It is part of the
inherent powers of the people as the repository
sovereignty in a republican state, such as ours (Section 1,
Art. 11, Constitution of the Philippines) to make, and,
hence, to amend their own Fundamental Law. Congress
may propose amendments to the Constitution merely
because the same explicitly grants such power. (Section 1,
Art. XV, Constitution of the Philippines) Hence, when
exercising the same, it is said that Senators and members
of the House of Representatives act, not as members of
Congress, but as component elements of a constituent
assembly. When acting as such, the members of Congress
derive their authority from the Constitution, unlike the
people, when performing the same function, (Of
amending the Constitution) for their authority does not
emanate from the Constitution they are the very source
of all powers of government including the Constitution
itself.
Since, when proposing, as a constituent assembly,
amendments to the Constitution, the members of
Congress derive their authority from the Fundamental
Law, it follows, necessarily, that they do not have the final
say on whether or not their acts are within or beyond
constitutional limits. Otherwise, they could brush aside
and set the same at naught, contrary to the basic tenet
that ours is a government of laws, not of men, and to the
rigid nature of our Constitution. Such rigidity is stressed
by the fact that the Constitution expressly confers upon
the Supreme Court, (And, inferentially, to lower courts.)
the power to declare a treaty unconstitutional. (Sec. 2(1),
Art. VIII of the Constitution), despite the eminently
political character of treaty-making power.
In short, the issue whether or not a Resolution of
Congress acting as a constituent assembly violates
the Constitution is essentially justiciable not political, and,
hence, subject to judicial review, and, to the extent that
this view may be inconsistent with the stand taken in
Mabanag v. Lopez Vito, (supra) the latter should be
deemed modified accordingly. The Members of the Court
are unanimous on this point.
No one can rightly claim that within the domain of its legitimate
authority, the Convention is not supreme. Nowhere in his petition and in
his oral argument and memoranda does petitioner point otherwise.
Actually, what respondents and intervenors are seemingly reluctant to
admit is that the Constitutional Convention of 1971, as any other
convention of the same nature, owes its existence and derives all its
64
authority and power from the existing Constitution of the Philippines.
This Convention has not been called by the people directly as in the case
of a revolutionary convention which drafts the first Constitution of an
entirely new government born of either a war of liberation from a mother
country or of a revolution against an existing government or of a
bloodless seizure of power a la coup d'etat. As to such kind of
conventions, it is absolutely true that the convention is completely
without restrain and omnipotent all wise, and it is as to such conventions
that the remarks of Delegate Manuel Roxas of the Constitutional
Convention of 1934 quoted by Senator Pelaez refer. No amount of
rationalization can belie the fact that the current convention came into
being only because it was called by a resolution of a joint session of
Congress acting as a constituent assembly by authority of Section 1,
Article XV of the present Constitution which provides:
ARTICLE XV AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a
vote of three-fourths of all the Members of the Senate
and of the House of Representatives voting separately,
may propose amendments to this Constitution or call a
convention for the purpose. Such amendments shall be
valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the
amendments are submitted to the people for their
ratification.
True it is that once convened, this Convention became endowed with
extra ordinary powers generally beyond the control of any department of
the existing government, but the compass of such powers can be co-
extensive only with the purpose for which the convention was called and
as it may propose cannot have any effect as part of the Constitution until
the same are duly ratified by the people, it necessarily follows that the
acts of convention, its officers and members are not immune from attack
on constitutional grounds. The present Constitution is in full force and
effect in its entirety and in everyone of its parts the existence of the
Convention notwithstanding, and operates even within the walls of that
assembly. While it is indubitable that in its internal operation and the
performance of its task to propose amendments to the Constitution it is
not subject to any degree of restraint or control by any other authority
than itself, it is equally beyond cavil that neither the Convention nor any
of its officers or members can rightfully deprive any person of life, liberty
or property without due process of law, deny to anyone in this country
the equal protection of the laws or the freedom of speech and of the
press in disregard of the Bill of Rights of the existing Constitution. Nor,
for that matter, can such Convention validly pass any resolution providing
for the taking of private property without just compensation or for the
imposition or exacting of any tax, impost or assessment, or declare war
or call the Congress to a special session, suspend the privilege of the writ
of habeas corpus, pardon a convict or render judgment in a controversy
between private individuals or between such individuals and the state, in
violation of the distribution of powers in the Constitution.
It being manifest that there are powers which the Convention may not
and cannot validly assert, much less exercise, in the light of the existing
Constitution, the simple question arises, should an act of the Convention
be assailed by a citizen as being among those not granted to or inherent
in it, according to the existing Constitution, who can decide whether such
a contention is correct or not? It is of the very essence of the rule of law
that somehow somewhere the Power and duty to resolve such a grave
constitutional question must be lodged on some authority, or we would
have to confess that the integrated system of government established by
our founding fathers contains a wide vacuum no intelligent man could
ignore, which is naturally unworthy of their learning, experience and
craftsmanship in constitution-making.
We need not go far in search for the answer to the query We have posed.
The very decision of Chief Justice Concepcion in Gonzales, so much
invoked by intervenors, reiterates and reinforces the irrefutable logic and
wealth of principle in the opinion written for a unanimous Court by
Justice Laurel in Angara vs. Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with
deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of
the government. The overlapping and interlacing of
65
functions and duties between the several departments,
however, sometimes makes it hard to say where the one
leaves off and the other begins. In times of social
disquietude or political excitement, the great landmark of
the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be
called upon to determine the proper allocation of powers
between the several departments and among the integral
or constituent units thereof.
As any human production our Constitution is of course
lacking perfection and perfectibility, but as much as it was
within the power of our people, acting through their
delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has
established a republican government intended to operate
and function as a harmonious whole, under a system of
check and balances and subject to specific limitations and
restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution
had not provided for a mechanism by which to direct the
course of government along constitutional channels, for
then the distribution of powers would be mere verbiage,
the bill of rights mere expressions of sentiment and the
principles of good government mere political apothegms.
Certainly the limitations and restrictions embodied in our
Constitution are real as they should be in any living
Constitution. In the United States where no express
constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to
speak of its historical origin and development there, has
been set at rest by popular acquiescence for a period of
more than one and half centuries. In our case, this
moderating power is granted, if not expressly, by clear
implication from section 2 of Article VIII of our
Constitution.
The Constitution is a definition of the powers or
government. Who is to determine the nature, scope and
extent of such powers? The Constitution itself has
provided for the instrumentality of the judiciary as the
rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any
superiority over the other departments; it does not in
reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned to
it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the
parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in
truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review
under the Constitution. Even then, this power of judicial
review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the
parties, and limited further to the constitutional question
raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal
questions and to strike conclusions unrelated to
actualities. Narrowed as its functions is in this manner the
judiciary does not pass upon questions of wisdom, justice
or expediency of legislation. More than that, courts
accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed
to abide by the Constitution but also because the judiciary
in the determination of actual cases and controversies
must reflect the wisdom and justice of the people as
expressed through their representatives in the executive
and legislative departments of the government.
But much as we might postulate on the internal checks of
power provided in our Constitution, it ought not the less
66
to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of
constitutional liberty ... the people who are authors of this
blessing must also be its guardians ... their eyes must be
ever ready to mark, their voices to pronounce ...
aggression on the authority of their Constitution." In the
last and ultimate analysis then, must the success of our
government in the unfolding years to come be tested in
the crucible of Filipino minds and hearts than in
consultation rooms and court chambers.
In the case at bar, the National Assembly has by resolution
(No. 8) of December 3, 1935, confirmed the election of the
herein petitioner to the said body. On the other hand, the
Electoral Commission has by resolution adopted on
December 9, 1935, fixed said date as the last day for the
filing of protests against the election, returns and
qualifications of members of the National Assembly;
notwithstanding the previous confirmations made by the
National Assembly as aforesaid. If, as contended by the
petitioner, the resolution of the National Assembly has
the effect of cutting off the power of the Electoral
Commission to entertain protests against the election,
returns and qualifications of members of the National
Assembly, submitted after December 3, 1935 then the
resolution of the Electoral Commission of December 9,
1935, is mere surplusage and had no effect. But, if, as
contended by the respondents, the Electoral Commission
has the sole power of regulating its proceedings to the
exclusion of the National Assembly, then the resolution of
December 9, 1935, by which the Electoral Commission
fixed said date as the last day for filing protests against
the election, returns and qualifications of members of the
National Assembly, should be upheld.
Here is then presented an actual controversy involving as
it does a conflict of a grave constitutional nature between
the National Assembly on the one hand and the Electoral
Commission on the other. From the very nature of the
republican government established in our country in the
light of American experience and of our own, upon the
judicial department is thrown the solemn and inescapable
obligation of interpreting the Constitution and defining
constitutional boundaries. The Electoral Commission as
we shall have occasion to refer hereafter, is a
constitutional organ, created for a specific purpose,
namely, to determine all contests relating to the election,
returns and qualifications of the members of the National
Assembly. Although the Electoral Commission may not be
interfered with, when and while acting within the limits of
its authority, it does not follow that it is beyond the reach
of the constitutional mechanism adopted by the people
and that it is not subject to constitutional restriction. The
Electoral Commission is not a separate department of the
government, and even if it were, conflicting claims of
authority under the fundamental law between
departmental powers and agencies of the government
are necessarily determined by the judiciary in justiciable
and appropriate cases. Discarding the English type and
other European types of constitutional government, the
framers of our Constitution adopted the American type
where the written constitution is interpreted and given
effect by the judicial department. In some countries which
have declined to follow the American example, provisions
have been inserted in their constitutions prohibiting the
courts from exercising the power to interpret the
fundamental law. This is taken as a recognition of what
otherwise would be the rule that in the absence of direct
prohibition, courts are bound to assume what is logically
their function. For instance, the Constitution of Poland of
1921 expressly provides that courts shall have no power to
examine the validity of statutes (art. 81, Chap. IV). The
former Austrian Constitution contained a similar
declaration. In countries whose constitution are silent in
this respect, courts have assumed this power. This is true
in Norway, Greece, Australia and South Africa. Whereas, in
67
 Czechoslovakia (arts. 2 and 3, Preliminary Law to
Constitutional Charter of the Czechoslavak, Republic,
February 29, 1920) and Spain (arts. 121-123, Title IX,
Constitution of the Republic of 1931) especial
constitutional courts are established to pass upon the
validity of ordinary laws. In our case, the nature of the
present controversy shows the necessity of a final
constitutional arbiter to determine the conflict of
authority between two agencies created by the
Constitution. Were we to decline to take cognizance of
the controversy, who will determine the conflict? And if
the conflict were left undecided and undetermined,
would not a void be thus created in our constitutional
system which may in the long run prove destructive of the
entire framework? To ask these questions is to answer
them. Natura vacuum abhorret, so must we avoid
exhaustion in our constitutional system. Upon principle,
reason, and authority, we are clearly of the opinion that
upon the admitted facts of the present case, this court
has jurisdiction over the Electoral Commission and the
subject matter of the present controversy for the purpose
of determining the character, scope and extent of the
constitutional grant to the Electoral Commission as "the
sole judge of all contests relating to the election, returns
and qualifications of the members of the National
Assembly." .
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in
Angara, these postulates just quoted do not apply only to conflicts of
authority between the three existing regular departments of the
government but to all such conflicts between and among these
departments, or, between any of them, on the one hand, and any other
constitutionally created independent body, like the electoral tribunals in
Congress, the Comelec and the Constituent assemblies constituted by the
House of Congress, on the other. We see no reason of logic or principle
whatsoever, and none has been convincingly shown to Us by any of the
respondents and intervenors, why the same ruling should not apply to
the present Convention, even if it is an assembly of delegate elected
directly by the people, since at best, as already demonstrated, it has been
convened by authority of and under the terms of the present
Constitution..
Accordingly, We are left with no alternative but to uphold the jurisdiction
of the Court over the present case. It goes without saying that We do this
not because the Court is superior to the Convention or that the
Convention is subject to the control of the Court, but simply because
both the Convention and the Court are subject to the Constitution and
the rule of law, and "upon principle, reason and authority," per Justice
Laurel, supra, it is within the power as it is the solemn duty of the Court,
under the existing Constitution to resolve the issues in which petitioner,
respondents and intervenors have joined in this case.
II
The issue of jurisdiction thus resolved, We come to the crux of the
petition. Is it within the powers of the Constitutional Convention of 1971
to order, on its own fiat, the holding of a plebiscite for the ratification of
the proposed amendment reducing to eighteen years the age for the
exercise of suffrage under Section 1 of Article V of the Constitution
proposed in the Convention's Organic Resolution No. 1 in the manner and
form provided for in said resolution and the subsequent implementing
acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case demand
the most accurate and unequivocal statement of the real issue which the
Court is called upon to resolve. Petitioner has very clearly stated that he is
not against the constitutional extension of the right of suffrage to the
eighteen-year-olds, as a matter of fact, he has advocated or sponsored in
Congress such a proposal, and that, in truth, the herein petition is not
intended by him to prevent that the proposed amendment here involved
be submitted to the people for ratification, his only purpose in filing the
petition being to comply with his sworn duty to prevent, Whenever he
can, any violation of the Constitution of the Philippines even if it is
committed in the course of or in connection with the most laudable
undertaking. Indeed, as the Court sees it, the specific question raised in
this case is limited solely and only to the point of whether or not it is
68
within the power of the Convention to call for a plebiscite for the
ratification by the people of the constitutional amendment proposed in
the abovequoted Organic Resolution No. 1, in the manner and form
provided in said resolution as well as in the subject question
implementing actions and resolution of the Convention and its officers, at
this juncture of its proceedings, when as it is a matter of common
knowledge and judicial notice, it is not set to adjourn sine die, and is, in
fact, still in the preliminary stages of considering other reforms or
amendments affecting other parts of the existing Constitution; and,
indeed, Organic Resolution No. 1 itself expressly provides, that the
amendment therein proposed "shall be without prejudice to other
amendments that will be proposed in the future by the 1971
Constitutional Convention on other portions of the amended section or
on other portions of the entire Constitution." In other words, nothing
that the Court may say or do, in this case should be understood as
reflecting, in any degree or means the individual or collective stand of the
members of the Court on the fundamental issue of whether or not the
eighteen-year-olds should be allowed to vote, simply because that issue is
not before Us now. There should be no doubt in the mind of anyone that,
once the Court finds it constitutionally permissible, it will not hesitate to
do its part so that the said proposed amendment may be presented to
the people for their approval or rejection.
Withal, the Court rests securely in the conviction that the fire and
enthusiasm of the youth have not blinded them to the absolute necessity,
under the fundamental principles of democracy to which the Filipino
people is committed, of adhering always to the rule of law. Surely, their
idealism, sincerity and purity of purpose cannot permit any other line of
conduct or approach in respect of the problem before Us. The
Constitutional Convention of 1971 itself was born, in a great measure,
because of the pressure brought to bear upon the Congress of the
Philippines by various elements of the people, the youth in particular, in
their incessant search for a peaceful and orderly means of bringing about
meaningful changes in the structure and bases of the existing social and
governmental institutions, including the provisions of the fundamental
law related to the well-being and economic security of the
underprivileged classes of our people as well as those concerning the
preservation and protection of our natural resources and the national
patrimony, as an alternative to violent and chaotic ways of achieving such
lofty ideals. In brief, leaving aside the excesses of enthusiasm which at
times have justifiably or unjustifiably marred the demonstrations in the
streets, plazas and campuses, the youth of the Philippines, in general, like
the rest of the people, do not want confusion and disorder, anarchy and
violence; what they really want are law and order, peace and orderliness,
even in the pursuit of what they strongly and urgently feel must be done
to change the present order of things in this Republic of ours. It would be
tragic and contrary to the plain compulsion of these perspectives, if the
Court were to allow itself in deciding this case to be carried astray by
considerations other than the imperatives of the rule of law and of the
applicable provisions of the Constitution. Needless to say, in a larger
measure than when it binds other departments of the government or any
other official or entity, the Constitution imposes upon the Court the
sacred duty to give meaning and vigor to the Constitution, by interpreting
and construing its provisions in appropriate cases with the proper parties,
and by striking down any act violative thereof. Here, as in all other cases,
We are resolved to discharge that duty.
During these twice when most anyone feels very strongly the urgent
need for constitutional reforms, to the point of being convinced that
meaningful change is the only alternative to a violent revolution, this
Court would be the last to put any obstruction or impediment to the work
of the Constitutional Convention. If there are respectable sectors opining
that it has not been called to supplant the existing Constitution in its
entirety, since its enabling provision, Article XV, from which the
Convention itself draws life expressly speaks only of amendments which
shall form part of it, which opinion is not without persuasive force both in
principle and in logic, the seemingly prevailing view is that only the
collective judgment of its members as to what is warranted by the
present condition of things, as they see it, can limit the extent of the
constitutional innovations the Convention may propose, hence the
complete substitution of the existing constitution is not beyond the
ambit of the Convention's authority. Desirable as it may be to resolve, this
grave divergence of views, the Court does not consider this case to be
properly the one in which it should discharge its constitutional duty in
such premises. The issues raised by petitioner, even those among them in
which respondents and intervenors have joined in an apparent wish to
69
have them squarely passed upon by the Court do not necessarily impose
upon Us the imperative obligation to express Our views thereon. The
Court considers it to be of the utmost importance that the Convention
should be untrammelled and unrestrained in the performance of its
constitutionally as signed mission in the manner and form it may conceive
best, and so the Court may step in to clear up doubts as to the boundaries
set down by the Constitution only when and to the specific extent only
that it would be necessary to do so to avoid a constitutional crisis or a
clearly demonstrable violation of the existing Charter. Withal, it is a very
familiar principle of constitutional law that constitutional questions are to
be resolved by the Supreme Court only when there is no alternative but
to do it, and this rule is founded precisely on the principle of respect that
the Court must accord to the acts of the other coordinate departments of
the government, and certainly, the Constitutional Convention stands
almost in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have already made it
clear that the Convention came into being by a call of a joint session of
Congress pursuant to Section I of Article XV of the Constitution, already
quoted earlier in this opinion. We reiterate also that as to matters not
related to its internal operation and the performance of its assigned
mission to propose amendments to the Constitution, the Convention and
its officers and members are all subject to all the provisions of the
existing Constitution. Now We hold that even as to its latter task of
proposing amendments to the Constitution, it is subject to the provisions
of Section I of Article XV. This must be so, because it is plain to Us that the
framers of the Constitution took care that the process of amending the
same should not be undertaken with the same ease and facility in
changing an ordinary legislation. Constitution making is the most valued
power, second to none, of the people in a constitutional democracy such
as the one our founding fathers have chosen for this nation, and which
we of the succeeding generations generally cherish. And because the
Constitution affects the lives, fortunes, future and every other
conceivable aspect of the lives of all the people within the country and
those subject to its sovereignty, every degree of care is taken in
preparing and drafting it. A constitution worthy of the people for which it
is intended must not be prepared in haste without adequate deliberation
and study. It is obvious that correspondingly, any amendment of the
Constitution is of no less importance than the whole Constitution itself,
and perforce must be conceived and prepared with as much care and
deliberation. From the very nature of things, the drafters of an original
constitution, as already observed earlier, operate without any limitations,
restraints or inhibitions save those that they may impose upon
themselves. This is not necessarily true of subsequent conventions called
to amend the original constitution. Generally, the framers of the latter
see to it that their handiwork is not lightly treated and as easily mutilated
or changed, not only for reasons purely personal but more importantly,
because written constitutions are supposed to be designed so as to last
for some time, if not for ages, or for, at least, as long as they can be
adopted to the needs and exigencies of the people, hence, they must be
insulated against precipitate and hasty actions motivated by more or less
passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less
stringent, made so by the people themselves, in regard to the process of
their amendment. And when such limitations or conditions are so
incorporated in the original constitution, it does not lie in the delegates of
any subsequent convention to claim that they may ignore and disregard
such conditions because they are as powerful and omnipotent as their
original counterparts.
Nothing of what is here said is to be understood as curtailing in any
degree the number and nature and the scope and extent of the
amendments the Convention may deem proper to propose. Nor does the
Court propose to pass on the issue extensively and brilliantly discussed by
the parties as to whether or not the power or duty to call a plebiscite for
the ratification of the amendments to be proposed by the Convention is
exclusively legislative and as such may be exercised only by the Congress
or whether the said power can be exercised concurrently by the
Convention with the Congress. In the view the Court takes of present
case, it does not perceive absolute necessity to resolve that question,
grave and important as it may be. Truth to tell, the lack of unanimity or
even of a consensus among the members of the Court in respect to this
issue creates the need for more study and deliberation, and as time is of
the essence in this case, for obvious reasons, November 8, 1971, the date
set by the Convention for the plebiscite it is calling, being nigh, We will
refrain from making any pronouncement or expressing Our views on this
70
question until a more appropriate case comes to Us. After all, the basis of
this decision is as important and decisive as any can be.
The ultimate question, therefore boils down to this: Is there any limitation
or condition in Section 1 of Article XV of the Constitution which is violated
by the act of the Convention of calling for a plebiscite on the sole
amendment contained in Organic Resolution No. 1? The Court holds that
there is, and it is the condition and limitation that all the amendments to
be proposed by the same Convention must be submitted to the people in
a single "election" or plebiscite. It being indisputable that the
amendment now proposed to be submitted to a plebiscite is only the first
amendment the Convention propose We hold that the plebiscite being
called for the purpose of submitting the same for ratification of the
people on November 8, 1971 is not authorized by Section 1 of Article XV of
the Constitution, hence all acts of the Convention and the respondent
Comelec in that direction are null and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is sufficiently
clear. lt says distinctly that either Congress sitting as a constituent
assembly or a convention called for the purpose "may propose
amendments to this Constitution," thus placing no limit as to the number
of amendments that Congress or the Convention may propose. The same
provision also as definitely provides that "such amendments shall be valid
as part of this Constitution when approved by a majority of the votes cast
at an election at which the amendments are submitted to the people for
their ratification," thus leaving no room for doubt as to how many
"elections" or plebiscites may be held to ratify any amendment or
amendments proposed by the same constituent assembly of Congress or
convention, and the provision unequivocably says "an election" which
means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and
appropriateness of this provision. As already stated, amending the
Constitution is as serious and important an undertaking as constitution
making itself. Indeed, any amendment of the Constitution is as important
as the whole of it if only because the Constitution has to be an integrated
and harmonious instrument, if it is to be viable as the framework of the
government it establishes, on the one hand, and adequately formidable
and reliable as the succinct but comprehensive articulation of the rights,
liberties, ideology, social ideals, and national and nationalistic policies and
aspirations of the people, on the other. lt is inconceivable how a
constitution worthy of any country or people can have any part which is
out of tune with its other parts..
A constitution is the work of the people thru its drafters assembled by
them for the purpose. Once the original constitution is approved, the part
that the people play in its amendment becomes harder, for when a whole
constitution is submitted to them, more or less they can assumed its
harmony as an integrated whole, and they can either accept or reject it in
its entirety. At the very least, they can examine it before casting their
vote and determine for themselves from a study of the whole document
the merits and demerits of all or any of its parts and of the document as a
whole. And so also, when an amendment is submitted to them that is to
form part of the existing constitution, in like fashion they can study with
deliberation the proposed amendment in relation to the whole existing
constitution and or any of its parts and thereby arrive at an intelligent
judgment as to its acceptability.
This cannot happen in the case of the amendment in question.
Prescinding already from the fact that under Section 3 of the questioned
resolution, it is evident that no fixed frame of reference is provided the
voter, as to what finally will be concomitant qualifications that will be
required by the final draft of the constitution to be formulated by the
Convention of a voter to be able to enjoy the right of suffrage, there are
other considerations which make it impossible to vote intelligently on the
proposed amendment, although it may already be observed that under
Section 3, if a voter would favor the reduction of the voting age to
eighteen under conditions he feels are needed under the circumstances,
and he does not see those conditions in the ballot nor is there any
possible indication whether they will ever be or not, because Congress
has reserved those for future action, what kind of judgment can he
render on the proposal?
71
But the situation actually before Us is even worse. No one knows what
changes in the fundamental principles of the constitution the Convention
will be minded to approve. To be more specific, we do not have any
means of foreseeing whether the right to vote would be of any significant
value at all. Who can say whether or not later on the Convention may
decide to provide for varying types of voters for each level of the political
units it may divide the country into. The root of the difficulty in other
words, lies in that the Convention is precisely on the verge of introducing
substantial changes, if not radical ones, in almost every part and aspect of
the existing social and political order enshrined in the present
Constitution. How can a voter in the proposed plebiscite intelligently
determine the effect of the reduction of the voting age upon the
different institutions which the Convention may establish and of which
presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it
must provide the voter not only sufficient time but ample basis for an
intelligent appraisal of the nature of the amendment per se as well as its
relation to the other parts of the Constitution with which it has to form a
harmonious whole. In the context of the present state of things, where
the Convention has hardly started considering the merits of hundreds, if
not thousands, of proposals to amend the existing Constitution, to
present to the people any single proposal or a few of them cannot
comply with this requirement. We are of the opinion that the present
Constitution does not contemplate in Section 1 of Article XV a plebiscite
or "election" wherein the people are in the dark as to frame of reference
they can base their judgment on. We reject the rationalization that the
present Constitution is a possible frame of reference, for the simple
reason that intervenors themselves are stating that the sole purpose of
the proposed amendment is to enable the eighteen year olds to take part
in the election for the ratification of the Constitution to be drafted by the
Convention. In brief, under the proposed plebiscite, there can be, in the
language of Justice Sanchez, speaking for the six members of the Court in
Gonzales, supra, "no proper submission".
III
The Court has no desire at all to hamper and hamstring the noble work of
the Constitutional Convention. Much less does the Court want to pass
judgment on the merits of the proposal to allow these eighteen years old
to vote. But like the Convention, the Court has its own duties to the
people under the Constitution which is to decide in appropriate cases
with appropriate parties Whether or not the mandates of the
fundamental law are being complied with. In the best light God has given
Us, we are of the conviction that in providing for the questioned
plebiscite before it has finished, and separately from, the whole draft of
the constitution it has been called to formulate, the Convention's Organic
Resolution No. 1 and all subsequent acts of the Convention implementing
the same violate the condition in Section 1, Article XV that there should
only be one "election" or plebiscite for the ratification of all the
amendments the Convention may propose. We are not denying any right
of the people to vote on the proposed amendment; We are only holding
that under Section 1, Article XV of the Constitution, the same should be
submitted to them not separately from but together with all the other
amendments to be proposed by this present Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic
Resolution No. 1 of the Constitutional Convention of 1971 and the
implementing acts and resolutions of the Convention, insofar as they
provide for the holding of a plebiscite on November 8, 1971, as well as the
resolution of the respondent Comelec complying therewith (RR
Resolution No. 695) are hereby declared null and void. The respondents
Comelec, Disbursing Officer, Chief Accountant and Auditor of the
Constitutional Convention are hereby enjoined from taking any action in
compliance with the said organic resolution. In view of the peculiar
circumstances of this case, the Court declares this decision immediately
executory. No costs.
Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.
72
Separate Opinions
MAKALINTAL, J., reserves his vote
I reserve my vote. The resolution in question is voted down by a sufficient
majority of the Court on just one ground, which to be sure achieves the
result from the legal and constitutional viewpoint. I entertain grave
doubts as to the validity of the premises postulated and conclusions
reached in support of the dispositive portion of the decision. However,
considering the urgent nature of this case, the lack of time to set down at
length my opinion on the particular issue upon which the decision is made
to rest, and the fact that a dissent on the said issue would necessarily be
inconclusive unless the other issues raised in the petition are also
considered and ruled upon a task that would be premature and
pointless at this time I limit myself to this reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:
We concur in the main opinion penned by Mr. Justice Barredo in his usual
inimitable, forthright and vigorous style. Like him, we do not express our
individual views on the wisdom of the proposed constitutional
amendment, which is not in issue here because it is a matter that properly
and exclusively addresses itself to the collective judgment of the people.
We must, however, articulate two additional objections of constitutional
dimension which, although they would seem to be superfluous because
of the reach of the basic constitutional infirmity discussed in extenso in
the main opinion, nevertheless appear to us to be just as fundamental in
character and scope.
Assuming that the Constitutional Convention has power to propose
piecemeal amendments and submit each separately to the people for
ratification, we are nonetheless persuaded that (1) that there is no proper
submission of title proposed amendment in question within the meaning
and intendment of Section 1 of Article XV of the Constitution, and (2) that
the forthcoming election is not the proper election envisioned by the
same provision of the Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on
Elections1 and Philippine Constitution Association vs. Commission on
Elections,2 expounded his view, with which we essentially agree, on the
minimum requirements that must be met in order that there can be a
proper submission to the people of a proposed constitutional
amendment. This is what he said:
... amendments must be fairly laid before the people for
their blessing or spurning. The people are not to be mere
rubber stamps. They are not to vote blindly. They must be
afforded ample opportunity to mull over the original
provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates
of their conscience suggest, free from the incubus of
extraneous or possibly insidious influences. We believe
the word "submitted" can only mean that the
government, within its maximum capabilities, should
strain every effort to inform citizen of the provisions to be
amended, and the proposed amendments and the
meaning, nature and effects thereof. By this, we are not
to be understood as saying that, if one citizen or 100
citizens or 1,000 citizens cannot be reached, then there is
no submission within the meaning of the word as
intended by the framers of the Constitution. What the
Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put
every instrumentality or agency within its structural
framework to enlighten the people, educate them with
respect to their act of ratification or rejection. For we
have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent
consent or rejection." .
The second constitutional objection was given expression by one of the
writers of this concurring opinion, in the following words:
73
 I find it impossible to believe that it was ever intended by
its framers that such amendment should be submitted
and ratified by just "a majority of the votes cast at an
election at which the amendments are submitted to the
people for their ratification", if the concentration of the
people's attention thereon is to be diverted by other
extraneous issues, such as the choice of local and national
officials. The framers of the Constitution, aware of the
fundamental character thereof, and of the need of giving
it as much stability as is practicable, could have only
meant that any amendments thereto should be debated,
considered and voted upon an election wherein the
people could devote undivided attention to the subject.4
True it is that the question posed by the proposed amendment, "Do you
or do you not want the 18-year old to be allowed to vote?," would seem
to be uncomplicated and innocuous. But it is one of life's verities that
things which appear to be simple may turn out not to be so simple after
all.
A number of doubts or misgivings could conceivably and logically assail
the average voter. Why should the voting age be lowered at all, in the
first place? Why should the new voting age be precisely 18 years, and not
19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as
the 21-year old so that there is no need of an educational qualification to
entitle him to vote? In this age of permissiveness and dissent, can the 18-
year old be relied upon to vote with judiciousness when the 21-year old, in
the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional
Convention insist on the said amendment? Why is there an unseemly
haste on the part of the Constitutional Convention in having this
particular proposed amendment ratified at this particular time? Do some
of the members of the Convention have future political plans which they
want to begin to subserve by the approval this year of this amendment? If
this amendment is approved, does it thereby mean that the 18-year old
should now also shoulder the moral and legal responsibilities of the 21-
year old? Will he be required to render compulsory military service under
the colors? Will the age of contractual consent be reduced to 18 years? If I
vote against this amendment, will I not be unfair to my own child who will
be 18 years old, come 1973? .
The above are just samplings from here, there and everywhere from a
domain (of searching questions) the bounds of which are not
immediately ascertainable. Surely, many more questions can be added to
the already long litany. And the answers cannot be had except as the
questions are debated fully, pondered upon purposefully, and accorded
undivided attention.
Scanning the contemporary scene, we say that the people are not, and by
election time will not be, sufficiently informed of the meaning, nature and
effects of the proposed constitutional amendment. They have not been
afforded ample time to deliberate thereon conscientiously. They have
been and are effectively distracted from a full and dispassionate
consideration of the merits and demerits of the proposed amendment by
their traditional pervasive involvement in local elections and politics. They
cannot thus weigh in tranquility the need for and the wisdom of the
proposed amendment.
Upon the above disquisition, it is our considered view that the
intendment of the words, "at an election at which the amendments are
submitted to the people for their ratification," embodied in Section 1 of
Article XV of the Constitution, has not been met.
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court penned by Justice
Barredo, characterized by clarity and vigor, its manifestation of fealty to
the rule of law couched in eloquent language, that commands assent. As
the Constitution occupies the topmost rank in the hierarchy of legal
norms, Congress and Constitutional Convention alike, no less than this
Court, must bow to its supremacy. Thereby constitutionalism asserts
itself. With the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not extend as far as the
acceptance of the conclusion reached. The question presented is indeed
novel, not being controlled by constitutional prescription, definite and
certain. Under the circumstances, with the express recognition in the
74
Constitution of the powers of the Constitutional Convention to propose
amendments, I cannot discern any objection to the validity of its action
there being no legal impediment that would call for its nullification. Such
an approach all the more commends itself to me considering that what
was sought to be done is to refer the matter to the people in whom,
according to our Constitution, sovereignty resides. It is in that sense that,
with due respect, I find myself unable to join my brethren.
I. It is understandable then why the decisive issue posed could not be
resolved by reliance on, implicit in the petition and the answer of
intervenors, such concepts as legislative control of the constitutional
convention referred to by petitioner on the one hand or, on the other,
the theory of conventional sovereignty favored by intervenors. It is
gratifying to note that during the oral argument of petitioner and counsel
for respondents and intervenors, there apparently was a retreat from
such extreme position, all parties, as should be the case, expressly
avowing the primacy of the Constitution, the applicable provision of
which as interpreted by this Court, should be controlling on both
Congress and the Convention. It cannot be denied though that in at least
one American state, that is Pennsylvania, there were decisions
announcing the doctrine that the powers to be exercised by a
constitutional convention are dependent on a legislative grant, in the
absence of any authority conferred directly by the fundamental law. The
result is a convention that is subordinate to the lawmaking body. Its field
of competence is circumscribed. It has to look to the latter for the
delimitation of its permissible scope of activity. It is thus made
subordinate to the legislature. Nowhere has such a view been more
vigorously expressed than in the Pennsylvania case of Wood's Appeal.1 Its
holding though finds no support under our constitutional provision.
It does not thereby follow that while free from legislative control, a
constitutional convention may lay claim to an attribute sovereign in
character. The Constitution is quite explicit that it is to the people, and to
the people alone, in whom sovereignty resides.2 Such a prerogative is
therefore withheld from a convention. It is an agency entrusted with the
responsibility of high import and significance it is true; it is denied
unlimited legal competence though. That is what sovereignty connotes. It
has to yield to the superior force of the Constitution. There can then be
no basis for the exaggerated pretension that it is an alter ego of the
people. It is to be admitted that there are some American state decisions,
the most notable of which is Sproule v. Fredericks,3 a Mississippi case,
that dates back to 1892, that yield a different conclusion. The doctrine
therein announced cannot bind us. Our Constitution makes clear that the
power of a constitutional convention is not sovereign. It is appropriately
termed constituent, limited as it is to the purpose of drafting a
constitution or proposing revision or amendments to one in existence,
subject in either case to popular approval.
The view that commends itself for acceptance is that legislature and
constitutional convention, alike recognized by the Constitution, are
coordinate, there being no superiority of one over the other. Insofar as
the constituent power of proposing amendments to the Constitution is
concerned, a constitutional convention enjoys a wide sphere of
autonomy consistently with the Constitution which can be the only
source of valid restriction on its competence. It is true it is to the
legislative body that the call to a convention must proceed, but once
convened, it cannot in any wise be interfered with, much less controlled
by Congress. A contrary conclusion would impair its usefulness for the
delicate, and paramount task assigned to it. A convention then is to be
looked upon as if it were one of the three coordinate departments which
under the principle of separation of powers is supreme within its field and
has exclusive cognizance of matters properly subject to its jurisdiction. A
succinct statement of the appropriate principle that should govern the
relationship between a constitutional convention and a legislative body
under American law is that found in Orfield's work. Thus: "The earliest
view seems to have been that a convention was absolute. The convention
was sovereign and subject to no restraint. On the other hand, Jameson,
whose views have been most frequently cited in decisions, viewed a
convention as a body with strictly limited powers, and subject to the
restrictions imposed on it by the legislative call. A third and intermediate
view is that urged by Dodd that a convention, though not sovereign, is
a body independent of the legislature; it is bound by the existing
constitution, but not by the acts of the legislature, as to the extent of its
constituent power. This view has become increasingly prevalent in the
state decisions."4
75
2. It is to the Constitution, and to the Constitution alone then, as so
vigorously stressed in the opinion of the Court, that any limitation on the
power the Constitutional, Convention must find its source. I turn to its
Article XV. It reads: "The Congress in joint session assembled, by a vote of
three fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to this
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority of
the votes cast at an election at which the amendments are submitted to
the people for their ratification."
Clearly, insofar as amendments, including revision, are concerned, there
are two steps, proposal and thereafter ratification. Thus as to the former,
two constituent bodies are provided for, the Congress of the Philippines
in the mode therein provided, and a constitutional convention that may
be called into being. Once assembled, a constitutional convention, like
the Congress of the Philippines, possesses in all its plenitude the
constituent power. Inasmuch as Congress may determine what
amendments it would have the people ratify and thereafter take all the
steps necessary so that the approval or disapproval of the electorate may
be obtained, the convention likewise, to my mind, should be deemed
possessed of all the necessary authority to assure that whatever
amendments it seeks to introduce would be submitted to the people at
an election called for that purpose. It would appear to me that to view
the convention as being denied a prerogative which is not withheld from
Congress as a constituent body would be to place it in an inferior
category. Such a proposition I do not find acceptable. Congress and
constitutional convention are agencies for submitting proposals under
the fundamental law. A power granted to one should not be denied the
other. No justification for such a drastic differentiation either in theory or
practice exists.
Such a conclusion has for me the added reinforcement that to require
ordinary legislation before the convention could be enabled to have its
proposals voted on by the people would be to place a power in the
legislative and executive branches that could, whether by act or omission,
result in the frustration of the amending process. I am the first to admit
that such likelihood is remote, but if such a risk even if minimal could be
avoided, it should be, unless the compelling force of an applicable
constitutional provision requires otherwise. Considering that a
constitutional convention is not precluded from imposing additional
restrictions on the powers of either the executive or legislative branches,
or, for that matter, the judiciary, it would appear to be the better policy
to interpret Article XV in such a way that would not sanction such
restraint on the authority that must be recognized as vested in a
constitutional convention. There is nothing in such a view that to my mind
would collide with a reasonable interpretation of Article XV. It certainly is
one way by which freed from pernicious abstractions, it would be easier
to accommodate a constitution to the needs of an unfolding future. That
is to facilitate its being responsive to the challenge that time inevitably
brings in its wake.
From such an approach then, I am irresistibly led to the conclusion that
the challenged resolution was well within the power of the convention.
That would be to brush aside the web of unreality spun from a too-
restrictive mode of appraising the legitimate scope of its competence.
That would be, for me, to give added vigor and life to the conferment of
authority vested in it, attended by such grave and awesome
responsibility.
3. It becomes pertinent to inquire then whether the last sentence of
Article XV providing that such amendment shall be valid when submitted
and thereafter approved by the majority of the votes cast by the people
at an election is a bar to the proposed submission. It is the conclusion
arrived at by my brethren that there is to be only one election and that
therefore the petition must be sustained as only when the convention
has finished its work should all amendments proposed be submitted for
ratification. That is not for me, and I say this with respect, the appropriate
interpretation. It is true that the Constitution uses the word "election" in
the singular, but that is not decisive. No undue reliance should be
accorded rules of grammar; they do not exert a compelling force in
constitutional interpretation. Meaning is to be sought not from specific
language in the singular but from the mosaic of significance derived from
the total context. It could be, if it were not thus, self-defeating. Such a
mode of construction does not commend itself. The words used in the
Constitution are not inert; they derive vitality from the obvious purposes
76
at which they are aimed. Petitioner's stress on linguistic refinement, while
not implausible does not, for me, carry the day.
It was likewise argued by petitioner that the proposed amendment is
provisional and therefore is not such as was contemplated in this article. I
do not find such contention convincing. The fact that the Constitutional
Convention did seek to consult the wishes of the people by the proposed
submission of a tentative amendatory provision is an argument for its
validity. It might be said of course that until impressed with finality, an
amendment is not to be passed upon by the electorate. There is
plausibility in such a view. A literal reading of the Constitution would
support it. The spirit that informs it though would not, for me, be
satisfied. From its silence I deduce the inference that there is no
repugnancy to the fundamental law when the Constitutional Convention
ascertains the popular will. In that sense, the Constitution, to follow the
phraseology of Thomas Reed Powel, is not silently silent but silently
vocal. What I deem the more important consideration is that while a
public official, as an agent, has to locate his source of authority in either
Constitution or statute, the people, as the principal, can only be limited in
the exercise of their sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way of thinking be
inconsistent with the fundamental principle that it is in the people, and
the people alone, that sovereignty resides.
4. The constitutional Convention having acted within the scope of its
authority, an action to restrain or prohibit respondent Commission on
Elections from conducting the plebiscite does not lie. It should not be lost
sight of that the Commission on Elections in thus being charged with such
a duty does not act in its capacity as the constitutional agency to take
charge of all laws relative to the conduct of election. That is a purely
executive function vested in it under Article X of the Constitution.5 It is
not precluded from assisting the Constitutional Convention if pursuant to
its competence to amend the fundamental law it seeks, as in this case, to
submit a proposal, even if admittedly tentative, to the electorate to
ascertain its verdict. At any rate, it may be implied that under the 1971
Constitutional Convention Act, it is not to turn a deaf ear to a summons
from the Convention to aid it in the legitimate discharge of its functions.6
The aforesaid considerations, such as they are, but which for me have a
force that I mind myself unable to overcome, leave me no alternative but
to dissent from my brethren, with due acknowledgement of course that
from their basic premises, the conclusion arrived at by them cannot be
characterized as in any wise bereft of a persuasive quality of a high order.
Separate Opinions
MAKALINTAL, J., reserves his vote
I reserve my vote. The resolution in question is voted down by a sufficient
majority of the Court on just one ground, which to be sure achieves the
result from the legal and constitutional viewpoint. I entertain grave
doubts as to the validity of the premises postulated and conclusions
reached in support of the dispositive portion of the decision. However,
considering the urgent nature of this case, the lack of time to set down at
length my opinion on the particular issue upon which the decision is made
to rest, and the fact that a dissent on the said issue would necessarily be
inconclusive unless the other issues raised in the petition are also
considered and ruled upon a task that would be premature and
pointless at this time I limit myself to this reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:
We concur in the main opinion penned by Mr. Justice Barredo in his usual
inimitable, forthright and vigorous style. Like him, we do not express our
individual views on the wisdom of the proposed constitutional
amendment, which is not in issue here because it is a matter that properly
and exclusively addresses itself to the collective judgment of the people.
We must, however, articulate two additional objections of constitutional
dimension which, although they would seem to be superfluous because
of the reach of the basic constitutional infirmity discussed in extenso in
77
the main opinion, nevertheless appear to us to be just as fundamental in
character and scope.
Assuming that the Constitutional Convention has power to propose
piecemeal amendments and submit each separately to the people for
ratification, we are nonetheless persuaded that (1) that there is no proper
submission of title proposed amendment in question within the meaning
and intendment of Section 1 of Article XV of the Constitution, and (2) that
the forthcoming election is not the proper election envisioned by the
same provision of the Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on
Elections1 and Philippine Constitution Association vs. Commission on
Elections,2 expounded his view, with which we essentially agree, on the
minimum requirements that must be met in order that there can be a
proper submission to the people of a proposed constitutional
amendment. This is what he said:
... amendments must be fairly laid before the people for
their blessing or spurning. The people are not to be mere
rubber stamps. They are not to vote blindly. They must be
afforded ample opportunity to mull over the original
provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates
of their conscience suggest, free from the incubus of
extraneous or possibly insidious influences. We believe
the word "submitted" can only mean that the
government, within its maximum capabilities, should
strain every effort to inform citizen of the provisions to be
amended, and the proposed amendments and the
meaning, nature and effects thereof. By this, we are not
to be understood as saying that, if one citizen or 100
citizens or 1,000 citizens cannot be reached, then there is
no submission within the meaning of the word as
intended by the framers of the Constitution. What the
Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put
every instrumentality or agency within its structural
framework to enlighten the people, educate them with
respect to their act of ratification or rejection. For we
have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent
consent or rejection." .
The second constitutional objection was given expression by one of the
writers of this concurring opinion, in the following words:
I find it impossible to believe that it was ever intended by
its framers that such amendment should be submitted
and ratified by just "a majority of the votes cast at an
election at which the amendments are submitted to the
people for their ratification", if the concentration of the
people's attention thereon is to be diverted by other
extraneous issues, such as the choice of local and national
officials. The framers of the Constitution, aware of the
fundamental character thereof, and of the need of giving
it as much stability as is practicable, could have only
meant that any amendments thereto should be debated,
considered and voted upon an election wherein the
people could devote undivided attention to the subject.4
True it is that the question posed by the proposed amendment, "Do you
or do you not want the 18-year old to be allowed to vote?," would seem
to be uncomplicated and innocuous. But it is one of life's verities that
things which appear to be simple may turn out not to be so simple after
all.
A number of doubts or misgivings could conceivably and logically assail
the average voter. Why should the voting age be lowered at all, in the
first place? Why should the new voting age be precisely 18 years, and not
19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as
the 21-year old so that there is no need of an educational qualification to
entitle him to vote? In this age of permissiveness and dissent, can the 18-
year old be relied upon to vote with judiciousness when the 21-year old, in
the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional
78
Convention insist on the said amendment? Why is there an unseemly
haste on the part of the Constitutional Convention in having this
particular proposed amendment ratified at this particular time? Do some
of the members of the Convention have future political plans which they
want to begin to subserve by the approval this year of this amendment? If
this amendment is approved, does it thereby mean that the 18-year old
should now also shoulder the moral and legal responsibilities of the 21-
year old? Will he be required to render compulsory military service under
the colors? Will the age of contractual consent be reduced to 18 years? If I
vote against this amendment, will I not be unfair to my own child who will
be 18 years old, come 1973? .
The above are just samplings from here, there and everywhere from a
domain (of searching questions) the bounds of which are not
immediately ascertainable. Surely, many more questions can be added to
the already long litany. And the answers cannot be had except as the
questions are debated fully, pondered upon purposefully, and accorded
undivided attention.
Scanning the contemporary scene, we say that the people are not, and by
election time will not be, sufficiently informed of the meaning, nature and
effects of the proposed constitutional amendment. They have not been
afforded ample time to deliberate thereon conscientiously. They have
been and are effectively distracted from a full and dispassionate
consideration of the merits and demerits of the proposed amendment by
their traditional pervasive involvement in local elections and politics. They
cannot thus weigh in tranquility the need for and the wisdom of the
proposed amendment.
Upon the above disquisition, it is our considered view that the
intendment of the words, "at an election at which the amendments are
submitted to the people for their ratification," embodied in Section 1 of
Article XV of the Constitution, has not been met.
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court penned by Justice
Barredo, characterized by clarity and vigor, its manifestation of fealty to
the rule of law couched in eloquent language, that commands assent. As
the Constitution occupies the topmost rank in the hierarchy of legal
norms, Congress and Constitutional Convention alike, no less than this
Court, must bow to its supremacy. Thereby constitutionalism asserts
itself. With the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not extend as far as the
acceptance of the conclusion reached. The question presented is indeed
novel, not being controlled by constitutional prescription, definite and
certain. Under the circumstances, with the express recognition in the
Constitution of the powers of the Constitutional Convention to propose
amendments, I cannot discern any objection to the validity of its action
there being no legal impediment that would call for its nullification. Such
an approach all the more commends itself to me considering that what
was sought to be done is to refer the matter to the people in whom,
according to our Constitution, sovereignty resides. It is in that sense that,
with due respect, I find myself unable to join my brethren.
I. It is understandable then why the decisive issue posed could not be
resolved by reliance on, implicit in the petition and the answer of
intervenors, such concepts as legislative control of the constitutional
convention referred to by petitioner on the one hand or, on the other,
the theory of conventional sovereignty favored by intervenors. It is
gratifying to note that during the oral argument of petitioner and counsel
for respondents and intervenors, there apparently was a retreat from
such extreme position, all parties, as should be the case, expressly
avowing the primacy of the Constitution, the applicable provision of
which as interpreted by this Court, should be controlling on both
Congress and the Convention. It cannot be denied though that in at least
one American state, that is Pennsylvania, there were decisions
announcing the doctrine that the powers to be exercised by a
constitutional convention are dependent on a legislative grant, in the
absence of any authority conferred directly by the fundamental law. The
result is a convention that is subordinate to the lawmaking body. Its field
of competence is circumscribed. It has to look to the latter for the
delimitation of its permissible scope of activity. It is thus made
subordinate to the legislature. Nowhere has such a view been more
vigorously expressed than in the Pennsylvania case of Wood's Appeal.1 Its
holding though finds no support under our constitutional provision.
79
It does not thereby follow that while free from legislative control, a
constitutional convention may lay claim to an attribute sovereign in
character. The Constitution is quite explicit that it is to the people, and to
the people alone, in whom sovereignty resides.2 Such a prerogative is
therefore withheld from a convention. It is an agency entrusted with the
responsibility of high import and significance it is true; it is denied
unlimited legal competence though. That is what sovereignty connotes. It
has to yield to the superior force of the Constitution. There can then be
no basis for the exaggerated pretension that it is an alter ego of the
people. It is to be admitted that there are some American state decisions,
the most notable of which is Sproule v. Fredericks,3 a Mississippi case,
that dates back to 1892, that yield a different conclusion. The doctrine
therein announced cannot bind us. Our Constitution makes clear that the
power of a constitutional convention is not sovereign. It is appropriately
termed constituent, limited as it is to the purpose of drafting a
constitution or proposing revision or amendments to one in existence,
subject in either case to popular approval.
The view that commends itself for acceptance is that legislature and
constitutional convention, alike recognized by the Constitution, are
coordinate, there being no superiority of one over the other. Insofar as
the constituent power of proposing amendments to the Constitution is
concerned, a constitutional convention enjoys a wide sphere of
autonomy consistently with the Constitution which can be the only
source of valid restriction on its competence. It is true it is to the
legislative body that the call to a convention must proceed, but once
convened, it cannot in any wise be interfered with, much less controlled
by Congress. A contrary conclusion would impair its usefulness for the
delicate, and paramount task assigned to it. A convention then is to be
looked upon as if it were one of the three coordinate departments which
under the principle of separation of powers is supreme within its field and
has exclusive cognizance of matters properly subject to its jurisdiction. A
succinct statement of the appropriate principle that should govern the
relationship between a constitutional convention and a legislative body
under American law is that found in Orfield's work. Thus: "The earliest
view seems to have been that a convention was absolute. The convention
was sovereign and subject to no restraint. On the other hand, Jameson,
whose views have been most frequently cited in decisions, viewed a
convention as a body with strictly limited powers, and subject to the
restrictions imposed on it by the legislative call. A third and intermediate
view is that urged by Dodd that a convention, though not sovereign, is
a body independent of the legislature; it is bound by the existing
constitution, but not by the acts of the legislature, as to the extent of its
constituent power. This view has become increasingly prevalent in the
state decisions."4
2. It is to the Constitution, and to the Constitution alone then, as so
vigorously stressed in the opinion of the Court, that any limitation on the
power the Constitutional, Convention must find its source. I turn to its
Article XV. It reads: "The Congress in joint session assembled, by a vote of
three fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to this
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority of
the votes cast at an election at which the amendments are submitted to
the people for their ratification."
Clearly, insofar as amendments, including revision, are concerned, there
are two steps, proposal and thereafter ratification. Thus as to the former,
two constituent bodies are provided for, the Congress of the Philippines
in the mode therein provided, and a constitutional convention that may
be called into being. Once assembled, a constitutional convention, like
the Congress of the Philippines, possesses in all its plenitude the
constituent power. Inasmuch as Congress may determine what
amendments it would have the people ratify and thereafter take all the
steps necessary so that the approval or disapproval of the electorate may
be obtained, the convention likewise, to my mind, should be deemed
possessed of all the necessary authority to assure that whatever
amendments it seeks to introduce would be submitted to the people at
an election called for that purpose. It would appear to me that to view
the convention as being denied a prerogative which is not withheld from
Congress as a constituent body would be to place it in an inferior
category. Such a proposition I do not find acceptable. Congress and
constitutional convention are agencies for submitting proposals under
the fundamental law. A power granted to one should not be denied the
80
other. No justification for such a drastic differentiation either in theory or
practice exists.
Such a conclusion has for me the added reinforcement that to require
ordinary legislation before the convention could be enabled to have its
proposals voted on by the people would be to place a power in the
legislative and executive branches that could, whether by act or omission,
result in the frustration of the amending process. I am the first to admit
that such likelihood is remote, but if such a risk even if minimal could be
avoided, it should be, unless the compelling force of an applicable
constitutional provision requires otherwise. Considering that a
constitutional convention is not precluded from imposing additional
restrictions on the powers of either the executive or legislative branches,
or, for that matter, the judiciary, it would appear to be the better policy
to interpret Article XV in such a way that would not sanction such
restraint on the authority that must be recognized as vested in a
constitutional convention. There is nothing in such a view that to my mind
would collide with a reasonable interpretation of Article XV. It certainly is
one way by which freed from pernicious abstractions, it would be easier
to accommodate a constitution to the needs of an unfolding future. That
is to facilitate its being responsive to the challenge that time inevitably
brings in its wake.
From such an approach then, I am irresistibly led to the conclusion that
the challenged resolution was well within the power of the convention.
That would be to brush aside the web of unreality spun from a too-
restrictive mode of appraising the legitimate scope of its competence.
That would be, for me, to give added vigor and life to the conferment of
authority vested in it, attended by such grave and awesome
responsibility.
3. It becomes pertinent to inquire then whether the last sentence of
Article XV providing that such amendment shall be valid when submitted
and thereafter approved by the majority of the votes cast by the people
at an election is a bar to the proposed submission. It is the conclusion
arrived at by my brethren that there is to be only one election and that
therefore the petition must be sustained as only when the convention
has finished its work should all amendments proposed be submitted for
ratification. That is not for me, and I say this with respect, the appropriate
interpretation. It is true that the Constitution uses the word "election" in
the singular, but that is not decisive. No undue reliance should be
accorded rules of grammar; they do not exert a compelling force in
constitutional interpretation. Meaning is to be sought not from specific
language in the singular but from the mosaic of significance derived from
the total context. It could be, if it were not thus, self-defeating. Such a
mode of construction does not commend itself. The words used in the
Constitution are not inert; they derive vitality from the obvious purposes
at which they are aimed. Petitioner's stress on linguistic refinement, while
not implausible does not, for me, carry the day.
It was likewise argued by petitioner that the proposed amendment is
provisional and therefore is not such as was contemplated in this article. I
do not find such contention convincing. The fact that the Constitutional
Convention did seek to consult the wishes of the people by the proposed
submission of a tentative amendatory provision is an argument for its
validity. It might be said of course that until impressed with finality, an
amendment is not to be passed upon by the electorate. There is
plausibility in such a view. A literal reading of the Constitution would
support it. The spirit that informs it though would not, for me, be
satisfied. From its silence I deduce the inference that there is no
repugnancy to the fundamental law when the Constitutional Convention
ascertains the popular will. In that sense, the Constitution, to follow the
phraseology of Thomas Reed Powel, is not silently silent but silently
vocal. What I deem the more important consideration is that while a
public official, as an agent, has to locate his source of authority in either
Constitution or statute, the people, as the principal, can only be limited in
the exercise of their sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way of thinking be
inconsistent with the fundamental principle that it is in the people, and
the people alone, that sovereignty resides.
4. The constitutional Convention having acted within the scope of its
authority, an action to restrain or prohibit respondent Commission on
Elections from conducting the plebiscite does not lie. It should not be lost
sight of that the Commission on Elections in thus being charged with such
a duty does not act in its capacity as the constitutional agency to take
81
charge of all laws relative to the conduct of election. That is a purely
executive function vested in it under Article X of the Constitution.5 It is
not precluded from assisting the Constitutional Convention if pursuant to
its competence to amend the fundamental law it seeks, as in this case, to
submit a proposal, even if admittedly tentative, to the electorate to
ascertain its verdict. At any rate, it may be implied that under the 1971
Constitutional Convention Act, it is not to turn a deaf ear to a summons
from the Convention to aid it in the legitimate discharge of its functions.6

The aforesaid considerations, such as they are, but which for me have a
force that I mind myself unable to overcome, leave me no alternative but
to dissent from my brethren, with due acknowledgement of course that
from their basic premises, the conclusion arrived at by them cannot be
characterized as in any wise bereft of a persuasive quality of a high order.

82
 Republic of the Philippines the issues of martial law, the I . assembly, its replacement, the powers of
SUPREME COURT such replacement, the period of its existence, the length of the period for
Manila tile exercise by the President of his present powers.1

EN BANC Twenty days after or on September 22, 1976, the President issued another
related decree, Presidential Decree No. 1031, amending the previous
G.R. No. L-44640 October 12, 1976 Presidential Decree No. 991, by declaring the provisions of presidential
Decree No. 229 providing for the manner of voting and canvass of votes
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner, in "barangays" (Citizens Assemblies) applicable to the national
vs. referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL Decree No. 1031 repealed Section 4, of Presidential Decree No. 991, the
TREASURER, respondents. full text of which (Section 4) is quoted in the footnote below.2

G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with preliminary
injunction relates to the power of the incumbent President of the
Philippines to propose amendments to the present Constitution in the
absence of the interim National Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential
Decree No. 991 calling for a national referendum on October 16, 1976 for
the Citizens Assemblies ("barangays") to resolve, among other things,
On the same date of September 22, 1976, the President issued
Presidential Decree No. 1033, stating the questions to be submitted to the
people in the referendum-plebiscite on October 16, 1976. The Decree
recites in its "whereas" clauses that the people's continued opposition to
the convening of the National Assembly evinces their desire to have such
body abolished and replaced thru a constitutional amendment, providing
for a legislative body, which will be submitted directly to the people in the
referendum-plebiscite of October 16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do you approve
the following amendments to the Constitution? For the purpose of the
second question, the referendum shall have the effect of a plebiscite
within the contemplation of Section 2 of Article XVI of the Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an interim
Batasang Pambansa. Members of the interim Batasang Pambansa which
shall not be more than 120, unless otherwise provided by law, shall
include the incumbent President of the Philippines, representatives

83
elected from the different regions of the nation, those who shall not be
less than eighteen years of age elected by their respective sectors, and
those chosen by the incumbent President from the members of the
Cabinet. Regional representatives shall be apportioned among the
regions in accordance with the number of their respective inhabitants
and on the basis of a uniform and progressive ratio while the sectors shall
be determined by law. The number of representatives from each region
or sector and the, manner of their election shall be prescribed and
regulated by law.
2. The interim Batasang Pambansa shall have the same powers and its
members shall have the same functions, responsibilities, rights, privileges,
and disqualifications as the interim National Assembly and the regular
National Assembly and the members thereof. However, it shall not
exercise the power provided in Article VIII, Section 14(l) of the
Constitution.
3. The incumbent President of the Philippines shall, within 30 days from
the election and selection of the members, convene the interim Batasang
Pambansa and preside over its sessions until the Speaker shall have been
elected. The incumbent President of the Philippines shall be the Prime
Minister and he shall continue to exercise all his powers even after the
interim Batasang Pambansa is organized and ready to discharge its
functions and likewise he shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty five. Constitution and
the powers vested in the President and the Prime Minister under this
Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the
powers and functions, and discharge the responsibilities of the regular
President (Prime Minister) and his Cabinet, and shall be subject only to
such disqualifications as the President (Prime Minister) may prescribe.
The President (Prime Minister) if he so desires may appoint a Deputy
Prime Minister or as many Deputy Prime Ministers as he may deem
necessary.
5. The incumbent President shall continue to exercise legislative powers
until martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister), there
exists a grave emergency or a threat or imminence thereof, or whenever
the interim Batasang Pambansa or the regular National Assembly fails or
is unable to act adequately on any matter for any reason that in his
judgment requires immediate action, he may, in order to meet the
exigency, issue the necessary decrees, orders or letters of instructions,
which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as presently constituted
but their functions, powers, and composition may be altered by law.
Referenda conducted thru the barangays and under the Supervision of
the Commission on Elections may be called at any time the government
deems it necessary to ascertain the will of the people regarding any
important matter whether of national or local interest.
8. All provisions of this Constitution not inconsistent with any of these
amendments shall continue in full force and effect.
9. These amendments shall take effect after the incumbent President
shall have proclaimed that they have been ratified by I majority of the
votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision
and control of the October 1976 National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD,
father and son, commenced L-44640 for Prohibition with Preliminary
Injunction seeking to enjoin the Commission on Elections from holding
and conducting the Referendum Plebiscite on October 16; to declare
without force and effect Presidential Decree Nos. 991 and 1033, insofar as
they propose amendments to the Constitution, as well as Presidential
Decree No. 1031, insofar as it directs the Commission on Elections to
supervise, control, hold, and conduct the Referendum-Plebiscite
scheduled on October 16, 1976.
84
Petitioners contend that under the 1935 and 1973 Constitutions there is
no grant to the incumbent President to exercise the constituent power to
propose amendments to the new Constitution. As a consequence, the
Referendum-Plebiscite on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for
respondent Commission on Elections, The Solicitor General principally
maintains that petitioners have no standing to sue; the issue raised is
political in nature, beyond judicial cognizance of this Court; at this state of
the transition period, only the incumbent President has the authority to
exercise constituent power; the referendum-plebiscite is a step towards
normalization.
On September 30, 1976, another action for Prohibition with Preliminary
Injunction, docketed as L-44684, was instituted by VICENTE M. GUZMAN,
a delegate to the 1971 Constitutional Convention, asserting that the
power to propose amendments to, or revision of the Constitution during
the transition period is expressly conferred on the interim National
Assembly under Section 16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed
on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and
ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the
implementation of Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers
under Martial Law, the incumbent President cannot act as a constituent
assembly to propose amendments to the Constitution; a referendum-
plebiscite is untenable under the Constitutions of 1935 and 1973; the
submission of the proposed amendments in such a short period of time
for deliberation renders the plebiscite a nullity; to lift Martial Law, the
President need not consult the people via referendum; and allowing 15-
.year olds to vote would amount to an amendment of the Constitution,
which confines the right of suffrage to those citizens of the Philippines 18
years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640
(Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to
challenge the constitutional premise of Presidential Decree Nos. 991, 1031,
and 1033. It is now an ancient rule that the valid source of a stature
Presidential Decrees are of such nature-may be contested by one who will
sustain a direct injuries as a in result of its enforcement. At the instance of
taxpayers, laws providing for the disbursement of public funds may be
enjoined, upon the theory that the expenditure of public funds by an
officer of the State for the purpose of executing an unconstitutional act
constitutes a misapplication of such funds. 4 The breadth of Presidential
Decree No. 991 carries all appropriation of Five Million Pesos for the
effective implementation of its purposes. 5 Presidential Decree No. 1031
appropriates the sum of Eight Million Pesos to carry out its provisions. 6
The interest of the aforenamed petitioners as taxpayers in the lawful
expenditure of these amounts of public money sufficiently clothes them
with that personality to litigate the validity of the Decrees appropriating
said funds. Moreover, as regards taxpayer's suits, this Court enjoys that
open discretion to entertain the same or not. 7 For the present case, We
deem it sound to exercise that discretion affirmatively so that the
authority upon which the disputed Decrees are predicated may be
inquired into.
2. The Solicitor General would consider the question at bar as a pure
political one, lying outside the domain of judicial review. We disagree. The
amending process both as to proposal and ratification, raises a judicial
question. 8 This is especially true in cases where the power of the
Presidency to initiate the of normally exercised by the legislature, is
seriously doubted. Under the terms of the 1973 Constitution, the power
to propose amendments o the constitution resides in the interim National
Assembly in the period of transition (See. 15, Transitory provisions). After
that period, and the regular National Assembly in its active session, the
power to propose amendments becomes ipso facto the prerogative of
the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973
constitution). The normal course has not been followed. Rather than
85
calling the National Assembly to constitute itself into a constituent
assembly the incumbent President undertook the proposal of
amendments and submitted the proposed amendments thru Presidential
Decree 1033 to the people in a Referendum-Plebiscite on October 16.
Unavoidably, the regularity regularity of the procedure for amendments,
written in lambent words in the very Constitution sought to be amended,
raises a contestable issue. The implementing Presidential Decree Nos.
991, 1031, and 1033, which commonly purport to have the force and effect
of legislation are assailed as invalid, thus the issue of the validity of said
Decrees is plainly a justiciable one, within the competence of this Court to
pass upon. Section 2 (2), Article X of the new Constitution provides: "All
cases involving the constitutionality of a treaty, executive agreement, or
law may shall be heard and decided by the Supreme Court en banc and no
treaty, executive agreement, or law may be declared unconstitutional
without the concurrence of at least ten Members. ..." The Supreme Court
has the last word in the construction not only of treaties and statutes, but
also of the Constitution itself The amending, like all other powers
organized in the Constitution, is in form a delegated and hence a limited
power, so that the Supreme Court is vested with that authorities to
determine whether that power has been discharged within its limits.
Political questions are neatly associated with the wisdom, of the legality
of a particular act. Where the vortex of the controversy refers to the
legality or validity of the contested act, that matter is definitely justiciable
or non-political. What is in the heels of the Court is not the wisdom of the
act of the incumbent President in proposing amendments to the
Constitution, but his constitutional authority to perform such act or to
assume the power of a constituent assembly. Whether the amending
process confers on the President that power to propose amendments is
therefore a downright justiciable question. Should the contrary be found,
the actuation of the President would merely be a brutum fulmen. If the
Constitution provides how it may be amended, the judiciary as the
interpreter of that Constitution, can declare whether the procedure
followed or the authority assumed was valid or not.10
We cannot accept the view of the Solicitor General, in pursuing his theory
of non-justiciability, that the question of the President's authority to
propose amendments and the regularity of the procedure adopted for
submission of the proposal to the people ultimately lie in the judgment of
the A clear Descartes fallacy of vicious circle. Is it not that the people
themselves, by their sovereign act, provided for the authority and
procedure for the amending process when they ratified the present
Constitution in 1973? Whether, therefore, the constitutional provision has
been followed or not is the proper subject of inquiry, not by the people
themselves of course who exercise no power of judicial but by the
Supreme Court in whom the people themselves vested that power, a
power which includes the competence to determine whether the
constitutional norms for amendments have been observed or not. And,
this inquiry must be done a prior not a posterior i.e., before the
submission to and ratification by the people.
Indeed, the precedents evolved by the Court or, prior constitutional cases
underline the preference of the Court's majority to treat such issue of
Presidential role in the amending process as one of non-political
impression. In the Plebiscite Cases, 11 the contention of the Solicitor
General that the issue on the legality of Presidential Decree No. 73
"submitting to the Pilipino people (on January 15, 1973) for ratification or
rejection the Constitution of the Republic of the Philippines proposed by
the 1971 Constitutional Convention and appropriating fund s therefore "is
a political one, was rejected and the Court unanimously considered the
issue as justiciable in nature. Subsequently in the Ratification Cases12
involving the issue of whether or not the validity of Presidential
Proclamation No. 1102. announcing the Ratification by the Filipino people
of the constitution proposed by the 1971 Constitutional Convention,"
partakes of the nature of a political question, the affirmative stand of' the
Solicitor General was dismissed, the Court ruled that the question raised
is justiciable. Chief Justice Concepcion, expressing the majority view, said,
Thus, in the aforementioned plebiscite cases, We rejected the theory of
the respondents therein that the question whether Presidential Decree
No. 73 calling a plebiscite to be held on January 15, 1973, for the
ratification or rejection of the proposed new Constitution, was valid or
not, was not a proper subject of judicial inquiry because, they claimed, it
partook of a political nature, and We unanimously declared that the issue
was a justiciable one. With Identical unanimity. We overruled the
respondent's contention in the 1971 habeas corpus cases, questioning Our
authority to determine the constitutional sufficiency of the factual bases
86
of the Presidential proclamation suspending the privilege of the writ of
habeas corpus on August 21, 1971, despite the opposite view taken by this
Court in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it
adhered to the former case, which view We, accordingly, abandoned and
refused to apply. For the same reason, We did not apply and expressly
modified, in Gonzales vs. Commission on Elections, the political-question
theory adopted in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs.
Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was
decisively refused by the Court. Chief Justice Concepcion continued: "The
reasons adduced in support thereof are, however, substantially the same
as those given in support on the political question theory advanced in
said habeas corpus and plebiscite cases, which were carefully considered
by this Court and found by it to be legally unsound and constitutionally
untenable. As a consequence. Our decisions in the aforementioned
habeas corpus cases partakes of the nature and effect of a stare decisis
which gained added weight by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this
Constitution may be proposed by the National Assembly
upon a vote of three-fourths of all its Members, or by a
constitutional convention. (2) The National Assembly may,
by a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote of all its
Members, submit the question of calling such a
convention to the electorate in an election.
SECTION 2. Any amendment to, or revision of, this
Constitution shall be valid when ratified by a majority of
the votes cast in a plebiscite which shall be held not later
than three months after the approval of such amendment
or revision.
In the present period of transition, the interim National Assembly
instituted in the Transitory Provisions is conferred with that amending
power. Section 15 of the Transitory Provisions reads:
SECTION 15. The interim National Assembly, upon special
call by the interim Prime Minister, may, by a majority vote
of all its Members, propose amendments to this
Constitution. Such amendments shall take effect when
ratified in accordance with Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life
of the nation, i.e., period of normalcy and period of transition. In times of
normally, the amending process may be initiated by the proposals of the
(1) regular National Assembly upon a vote of three-fourths of all its
members; or (2) by a Constitutional Convention called by a vote of two-
thirds of all the Members of the National Assembly. However the calling
of a Constitutional Convention may be submitted to the electorate in an
election voted upon by a majority vote of all the members of the National
Assembly. In times of transition, amendments may be proposed by a
majority vote of all the Members of the National Assembly upon special
call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the
incumbent President is vested with that prerogative of discretion as to
when he shall initially convene the interim National Assembly. Speaking
for the majority opinion in that case, Justice Makasiar said: "The
Constitutional Convention intended to leave to the President the
determination of the time when he shall initially convene the interim
National Assembly, consistent with the prevailing conditions of peace and
order in the country." Concurring, Justice Fernandez, himself a member
of that Constitutional Convention, revealed: "(W)hen the Delegates to
the Constitutional Convention voted on the Transitory Provisions, they
were aware of the fact that under the same, the incumbent President
was given the discretion as to when he could convene the interim
National Assembly; it was so stated plainly by the sponsor, Delegate
87
Yaneza; as a matter of fact, the proposal that it be convened
'immediately', made by Delegate Pimentel (V) was rejected. The
President's decision to defer the convening of the interim National
Assembly soon found support from the people themselves. In the
plebiscite of January 10-15, 1973, at which the ratification of the 1973
Constitution was submitted, the people voted against the convening of
the interim National Assembly. In the referendum of July 24, 1973, the
Citizens Assemblies ("bagangays") reiterated their sovereign will to
withhold the convening of the interim National Assembly. Again, in the
referendum of February 27, 1975, the proposed question of whether the
interim National Assembly shall be initially convened was eliminated,
because some of the members of Congress and delegates of the
Constitutional Convention, who were deemed automatically members of
the I interim National Assembly, were against its inclusion since in that
referendum of January, 1973, the people had already resolved against it.
3. In sensu strictiore, when the legislative arm of the state undertakes the
proposals of amendment to a Constitution, that body is not in the usual
function of lawmaking. lt is not legislating when engaged in the amending
process.16 Rather, it is exercising a peculiar power bestowed upon it by
the fundamental charter itself. In the Philippines, that power is provided
for in Article XVI of the 1973 Constitution (for the regular National
Assembly) or in Section 15 of the Transitory Provisions (for the National
Assembly). While ordinarily it is the business of the legislating body to
legislate for the nation by virtue of constitutional conferment amending
of the Constitution is not legislative in character. In political science a
distinction is made between constitutional content of an organic
character and that of a legislative character'. The distinction, however, is
one of policy, not of law.17 Such being the case, approval of the President
of any proposed amendment is a misnomer 18 The prerogative of the
President to approve or disapprove applies only to the ordinary cases of
legislation. The President has nothing to do with proposition or adoption
of amendments to the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government the
Philippines is a crisis government today are more or less concentrated in
the President. 20 According to Rossiter, "(t)he concentration of
government power in a democracy faced by an emergency is a corrective
to the crisis inefficiencies inherent in the doctrine of the separation of
powers. In most free states it has generally been regarded as imperative
that the total power of the government be parceled out among three
mutually independent branches executive, legislature, and judiciary. It is
believed to be destructive of constitutionalism if any one branch should
exercise any two or more types of power, and certainly a total disregard
of the separation of powers is, as Madison wrote in the Federalist, No. 47,
'the very definition of tyranny.' In normal times the separation of powers
forms a distinct obstruction to arbitrary governmental action. By this
same token, in abnormal times it may form an insurmountable barrier to a
decisive emergency action in behalf of the state and its independent
existence. There are moments in the life of any government when all
powers must work together in unanimity of purpose and action, even if
this means the temporary union of executive, legislative, and judicial
power in the hands of one man. The more complete the separation of
powers in a constitutional system, the more difficult and yet the more
necessary will be their fusion in time of crisis. This is evident in a
comparison of the crisis potentialities of the cabinet and presidential
systems of government. In the former the all-important harmony of
legislature and executive is taken for granted; in the latter it is neither
guaranteed nor to be to confidently expected. As a result, cabinet is more
easily established and more trustworthy than presidential dictatorship.
The power of the state in crisis must not only be concentrated and
expanded; it must also be freed from the normal system of constitutional
and legal limitations. 21 John Locke, on the other hand, claims for the
executive in its own right a broad discretion capable even of setting aside
the ordinary laws in the meeting of special exigencies for which the
legislative power had not provided. 22 The rationale behind such broad
emergency powers of the Executive is the release of the government
88
from "the paralysis of constitutional restrains" so that the crisis may be
ended and normal times restored.
2. The presidential exercise of legislative powers in time of martial law is
now a conceded valid at. That sun clear authority of the President is
saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus:23
The incumbent President of the Philippines shall initially
convene the interim National Assembly and shall preside
over its sessions until the interim Speaker shall have been
elected. He shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty-five
Constitution and the powers vested in the President and
the Prime Minister under this Constitution until the calls
upon the interim National Assembly to elect the interim
President and the interim Prime Minister, who shall then
exercise their respective powers vested by this
Constitution.
All proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President
shall be part of the law of the land, and shall remain valid,
binding, and effective even after lifting of martial law or
the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations,
orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly
modified or repealed by the regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional
Convention delegate, "that the Constitutional Convention, while giving to
the President the discretion when to call the interim National Assembly to
session, and knowing that it may not be convened soon, would create a
vacuum in the exercise of legislative powers. Otherwise, with no one to
exercise the lawmaking powers, there would be paralyzation of the entire
governmental machinery." 24 Paraphrasing Rossiter, this is an extremely
important factor in any constitutional dictatorship which extends over a
period of time. The separation of executive and legislature ordained in
the Constitution presents a distinct obstruction to efficient crisis
government. The steady increase in executive power is not too much a
cause for as the steady increase in the magnitude and complexity of the
problems the President has been called upon by the Filipino people to
solve in their behalf, which involve rebellion, subversion, secession,
recession, inflation, and economic crisis-a crisis greater than war. In short,
while conventional constitutional law just confines the President's power
as Commander-in-Chief to the direction of the operation of the national
forces, yet the facts of our political, social, and economic disturbances
had convincingly shown that in meeting the same, indefinite power
should be attributed to tile President to take emergency measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally
consigned to the interim National Assembly during the transition period.
However, the initial convening of that Assembly is a matter fully
addressed to the judgment of the incumbent President. And, in the
exercise of that judgment, the President opted to defer convening of that
body in utter recognition of the people's preference. Likewise, in the
period of transition, the power to propose amendments to the
Constitution lies in the interim National Assembly upon special call by the
President (See. 15 of the Transitory Provisions). Again, harking to the
dictates of the sovereign will, the President decided not to call the
interim National Assembly. Would it then be within the bounds of the
Constitution and of law for the President to assume that constituent
power of the interim Assembly vis-a-vis his assumption of that body's
legislative functions? The answer is yes. If the President has been
legitimately discharging the legislative functions of the interim Assembly,
there is no reason why he cannot validly discharge the function of that
Assembly to propose amendments to the Constitution, which is but
adjunct, although peculiar, to its gross legislative power. This, of course,
89
is not to say that the President has converted his office into a constituent
assembly of that nature normally constituted by the legislature. Rather,
with the interim National Assembly not convened and only the Presidency
and the Supreme Court in operation, the urges of absolute necessity
render it imperative upon the President to act as agent for and in behalf
of the people to propose amendments to the Constitution.
Parenthetically, by its very constitution, the Supreme Court possesses no
capacity to propose amendments without constitutional infractions. For
the President to shy away from that actuality and decline to undertake
the amending process would leave the governmental machineries at a
stalemate or create in the powers of the State a destructive vacuum,
thereby impeding the objective of a crisis government "to end the crisis
and restore normal times." In these parlous times, that Presidential
initiative to reduce into concrete forms the constant voices of the people
reigns supreme. After all, constituent assemblies or constitutional
conventions, like the President now, are mere agents of the people .26
2. The President's action is not a unilateral move. As early as the
referendums of January 1973 and February 1975, the people had already
rejected the calling of the interim National Assembly. The Lupong
Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang
Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga
Barangay, representing 42,000 barangays, about the same number of
Kabataang Barangay organizations, Sanggunians in 1,458 municipalities,
72 provinces, 3 sub-provinces, and 60 cities had informed the President
that the prevailing sentiment of the people is for the abolition of the
interim National Assembly. Other issues concerned the lifting of martial
law and amendments to the Constitution .27 The national organizations
of Sangguniang Bayan presently proposed to settle the issues of martial
law, the interim Assembly, its replacement, the period of its existence,
the length of the period for the exercise by the President of its present
powers in a referendum to be held on October 16 .28 The Batasang Bayan
(legislative council) created under Presidential Decree 995 of September
10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank,
91 members of the Lupong Tagapagpaganap (executive committee) of
the Katipunan ng mga Sangguniang Bayan voted in session to submit
directly to the people in a plebiscite on October 16, the previously quoted
proposed amendments to the Constitution, including the issue of martial
law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the
President the submission of the proposed amendments to the people on
October 16. All the foregoing led the President to initiate the proposal of
amendments to the Constitution and the subsequent issuance of
Presidential Decree No, 1033 on September 22, 1976 submitting the
questions (proposed amendments) to the people in the National
Referendum-Plebiscite on October 16.
V
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary state is
easily seen. In the Philippines, a republican and unitary state, sovereignty
"resides in the people and all government authority emanates from them
.30 In its fourth meaning, Savigny would treat people as "that particular
organized assembly of individuals in which, according to the Constitution,
the highest power exists." 31 This is the concept of popular sovereignty. It
means that the constitutional legislator, namely the people, is sovereign
32 In consequence, the people may thus write into the Constitution their
convictions on any subject they choose in the absence of express
constitutional prohibition. 33 This is because, as Holmes said, the
Constitution "is an experiment, as all life is all experiment."34 "The
necessities of orderly government," wrote Rottschaefer, "do not require
that one generation should be permitted to permanently fetter all future
generations." A constitution is based, therefore, upon a self-limiting
decision of the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people
to exercise their sovereign power as constitutional legislator. The
proposed amendments, as earlier discussed, proceed not from the
thinking of a single man. Rather, they are the collated thoughts of the
sovereign will reduced only into enabling forms by the authority who can
presently exercise the powers of the government. In equal vein, the
submission of those proposed amendments and the question of martial
law in a referendum-plebiscite expresses but the option of the people
themselves implemented only by the authority of the President. Indeed, it
may well be said that the amending process is a sovereign act, although
90
the authority to initiate the same and the procedure to be followed reside
somehow in a particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1)
Do you want martial law to be continued? - is a referendum question,
wherein the 15-year olds may participate. This was prompted by the
desire of the Government to reach the larger mas of the people so that
their true pulse may be felt to guide the President in pursuing his
program for a New Order. For the succeeding question on the proposed
amendments, only those of voting age of 18 years may participate. This is
the plebiscite aspect, as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes of
those 18 years old and above which will have valid bearing on the results.
The fact that the voting populace are simultaneously asked to answer the
referendum question and the plebiscite question does not infirm the
referendum-plebiscite. There is nothing objectionable in consulting the
people on a given issue, which is of current one and submitting to them
for ratification of proposed constitutional amendments. The fear of
commingled votes (15-year olds and 18-year olds above) is readily
dispelled by the provision of two ballot boxes for every barangay center,
one containing the ballots of voters fifteen years of age and under
eighteen, and another containing the ballots of voters eighteen years of
age and above. 37 The ballots in the ballot box for voters fifteen years of
age and under eighteen shall be counted ahead of the ballots of voters
eighteen years and above contained in another ballot box. And, the
results of the referendum-plebiscite shall be separately prepared for the
age groupings, i.e., ballots contained in each of the two boxes.38
2. It is apt to distinguish here between a "referendum" and a "plebiscite."
A "referendum" is merely consultative in character. It is simply a means of
assessing public reaction to the given issues submitted to the people foe
their consideration, the calling of which is derived from or within the
totality of the executive power of the President.39 It is participated in by
all citizens from the age of fifteen, regardless of whether or not they are
illiterates, feeble-minded, or ex- convicts .40 A "plebiscite," on the other
hand, involves the constituent act of those "citizens of the Philippines not
otherwise disqualified by law, who are eighteen years of age or over, and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months preceding the
election Literacy, property or any other substantive requirement is not
imposed. It is generally associated with the amending process of the
Constitution, more particularly, the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of
martial law stultifies in main the freedom to dissent. That speaks of a
bygone fear. The martial law regime which, in the observation of Justice
Fernando, 41 is impressed with a mild character recorded no State
imposition for a muffled voice. To be sure, there are restraints of the
individual liberty, but on certain grounds no total suppression of that
liberty is aimed at. The for the referendum-plebiscite on October 16
recognizes all the embracing freedoms of expression and assembly The
President himself had announced that he would not countenance any
suppression of dissenting views on the issues, as he is not interested in
winning a "yes" or "no" vote, but on the genuine sentiment of the people
on the issues at hand. 42 Thus, the dissenters soon found their way to the
public forums, voicing out loud and clear their adverse views on the
proposed amendments and even (in the valid ratification of the 1973
Constitution, which is already a settled matter.43 Even government
employees have been held by the Civil Service Commission free to
participate in public discussion and even campaign for their stand on the
referendum-plebiscite issues.44
VIII
91
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is
not too short for free debates or discussions on the referendum-
plebiscite issues. The questions are not new. They are the issues of the
day. The people have been living with them since the proclamation of
martial law four years ago. The referendums of 1973 and 1975 carried the
same issue of martial law. That notwithstanding, the contested brief
period for discussion is not without counterparts in previous plebiscites
for constitutional amendments. Justice Makasiar, in the Referendum
Case, recalls: "Under the old Society, 15 days were allotted for the
publication in three consecutive issues of the Official Gazette of the
women's suffrage amendment to the Constitution before the scheduled
plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional
amendment to append as ordinance the complicated Tydings-
Kocialskowski was published in only three consecutive issues of the
Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act
492). For the 1940 Constitutional amendments providing for the
bicameral Congress, the reelection of the President and Vice President,
and the creation of the Commission on Elections, 20 days of publication in
three consecutive issues of the Official Gazette was fixed (Com Act No.
517). And the Parity Amendment, an involved constitutional amendment
affecting the economy as well as the independence of the Republic was
publicized in three consecutive issues of the Official Gazette for 20 days
prior to the plebiscite (Rep. Act No. 73)."45
2. It is worthy to note that Article XVI of the Constitution makes no
provision as to the specific date when the plebiscite shall be held, but
simply states that it "shall be held not later than three months after the
approval of such amendment or revision." In Coleman v. Miller, 46 the
United States Supreme court held that this matter of submission involves
"an appraisal of a great variety of relevant conditions, political, social and
economic," which "are essentially political and not justiciable." The
constituent body or in the instant cases, the President, may fix the time
within which the people may act. This is because proposal and ratification
are not treated as unrelated acts, but as succeeding steps in a single
endeavor, the natural inference being that they are not to be widely
separated in time; second, it is only when there is deemed to be a
necessity therefor that amendments are to be proposed, the reasonable
implication being that when proposed, they are to be considered and
disposed of presently, and third, ratification is but the expression of the
approbation of the people, hence, it must be done contemporaneously.
47 In the words of Jameson, "(a)n alteration of the Constitution proposed
today has relation to the sentiment and the felt needs of today, and that,
if not ratified early while that sentiment may fairly be supposed to exist. it
ought to be regarded as waived, and not again to be voted upon, unless a
second time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees Nos. 991,
1031 and 1033 political or justiciable?
2. During the present stage of the transition period, and under, the
environmental circumstances now obtaining, does the President possess
power to propose amendments to the Constitution as well as set up the
required machinery and prescribe the procedure for the ratification of his
proposals by the people?
3. Is the submission to the people of the proposed amendments within
the time frame allowed therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices
Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia
Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of
the view that the question posed is justiciable, while Associate Justices
Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view
that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices
Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in
92
the affirmative, while Associate Justices Teehankee and Munoz Palma
voted in the negative. Associate Justice Fernando, conformably to his
concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA 183),
specifically dissents from the proposition that there is concentration of
powers in the Executive during periods of crisis, thus raising serious
doubts as to the power of the President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is
a sufficient and proper submission of the proposed amendments for
ratification by the people. Associate Justices Barredo and Makasiar
expressed the hope, however that the period of time may be extended.
Associate Justices Fernando, Makasiar and Antonio are of the view that
the question is political and therefore beyond the competence and
cognizance of this Court, Associate Justice Fernando adheres to his
concurrence in the opinion of Chief Justice Concepcion in Gonzales vs.
COMELEC (21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma
hold that prescinding from the President's lack of authority to exercise
the constituent power to propose the amendments, etc., as above
stated, there is no fair and proper submission with sufficient information
and time to assure intelligent consent or rejection under the standards
set by this Court in the controlling cases of Gonzales, supra, and Tolentino
vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio,
Aquino, Concepcion Jr. and Martin voted to dismiss the three petitions at
bar. For reasons as expressed in his separate opinion, Associate Justice
Fernando concurs in the result. Associate Justices Teehankee and Munoz
Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are
hereby dismissed. This decision is immediately executory.
SO ORDERED.
Aquino, J, in the result.
Separate Opinions
CASTRO, C.J.:, concurring:
From the challenge as formulated in the three petitions at bar and the
grounds advanced be the Solicitor General in opposition thereto, as well
as the arguments adduced by the counsels of the parties at the hearing
had on October 7 and 8, 1976, three vital issues readily project themselves
as the centers of controversy, namely:
(1) Is the question of the constitutionality of Presidential Decrees Nos.
991, 1031 and 1033 political or justiciable?
(2) During the present stage of the transition period, and under the
environmental circumstances now obtaining, does the President possess
power to propose amendments to the Constitution as well as set up the
required machineries and prescribe the procedure for the ratification of
his proposals by the people?
(3) Is the submission to the people of the proposed amendments within
the time frame allowed therefor a sufficient and proper, submission"
I
First Issue
The threshold question is not at all one of first impression Specifically on
the matter of proposals to amend the Constitution, this Court, in
Mabanag vs. Lopez Vito (78 Phil. 1), inceptively announced the dictum
that-
Proposal to amend the Constitution is a highly political
function performed by the Congress in its sovereign
legislative capacity and committed to its charges by the
Constitution itself. The exercise of this power is even
independent of any intervention by the Chief Executive. If
on grounds of expediency scrupulous attention of the
93
 judiciary be needed to safeguard public interest, there is
less reason for judicial inquiry into the validity of a
proposal than into that of a ratification.
In time, however, the validity of the said pronouncement was eroded. In
the assessment of the Court itself-
The force of this precedent has been weakened, however, by Suanes vs.
Chief Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581,
March 4 and 14, 1949), Tanada vs. Cuenco (L-10520, February 28, 1957),
and Macias vs. Commission on Elections (L-18684, September 14, 1961).
xxx xxx xxx
In short, the issue whether or not a Resolution of Congress-acting as a
constituent assembly-violates the Constitution is essentially justiciable,
not political, and, hence, subject to judicial review, and, to the extent this
view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito
the latter should be deemed modified accordingly. The Members of the
Court are unanimous on this point." (Gonzales vs. Commission on
Elections, et al, L-28196, November 9, 1967, 21 SCRA 774, 786-787).
The abandonment of the Mabanag vs. Lopez Vito doctrine appears to
have been completed when, in Javellana vs. Secretary, et al. (L-36142,
March 3l, 1973, 50 SCRA 30), six members of the Court concurred in the
view that the question of whether the 1973 Constitution was ratified in
accordance with the provisions of Article XV (Amendments) of the 1935
Constitution is inherently and essentially justiciable.
As elucidated therein, with extensive quotations from Tanada vs. Cuenco
(103 Phil. 1051)-
... the term 'political question' connotes, in legal parlance,
what it means in ordinarily parlance, namely, a question of
policy in matters concerning the government of a State,
as a body politic. In other words, in the language of
Corpus Juris Secundum (supra), it refers to 'those
questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the
government.' It is concerned with issues dependent upon
the wisdom, not legality, of a particular measure.'
Accordingly, when the grant of power is qualified, conditional or subject
to limitations, the issue on whether or not the prescribed qualifications or
conditions have been met, or the limitations respected, is justiciable or
non-political, the crux of the problem being one of legality or validity of
the contested act, not its wisdom. Otherwise, said qualifications,
conditions or limitations - particularly those prescribed or imposed by the
Constitution - would be set at naught." (Javellana vs. Executive Secretary,
supra).
So it is in the situation here presented. The basic issue is the
constitutional validity of the presidential acts of proposing amendments
to the Constitution and of calling a referendum-plebiscite for the
ratification of the proposals made. Evidently, the question does not
concern itself with the wisdom of the exercise of the authority claimed or
of the specific amendments proposed. Instead the inquiry vel non is
focused solely on the existence of the said power in the President - a
question purely of legality determinable thru interpretation and
construction of the letter and spirit of the Constitution by the Court as
the final arbiter in the delineation of constitutional boundaries and the
allocation of constitutional powers.
For the Court to shun cognizance of the challenge herein presented,
especially in these parlous years, would be to abdicate its constitutional
powers, shirk its constitutional responsibility, and deny the people their
ultimate recourse for judicial determination.
I have thus no hesitancy in concluding that the question here presented is
well within the periphery of judicial inquiry.
II
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Second Issue
The main question stands on a different footing; it appears
unprecedented both here and elsewhere. Its solution, I believe, can be
found and unraveled only by a critical assessment of the existing legal
order in the light of the prevailing political and factual milieu.
To be sure, there is an impressive array of consistent jurisprudence on the
proposition that, normally or under normal conditions, a Constitution may
be amended only in accord with the procedure set forth therein. Hence, if
there be any such prescription for the amendatory process as invariable
there is because one of the essential parts of a Constitution is the so-
called "constitution of sovereignty" which comprises the provision or
provisions on the modes in accordance with which formal changes in the
fundamental law may be effected the same would ordinarily be the
controlling criterion for the validity of the amendments sought.
Unfortunately, however, during the present transition period of our
political development, no express provision is extant in the Constitution
regarding the agency or agent by whom and the procedure by which
amendments thereto may be proposed and ratified fact overlooked by
those who challenge the validity of the presidential acts in the premises.
This is so because there are at least two distinctly in the transition from
the old system of government under the 1935 Constitution to the new
one established by the 1973 Constitution.
The first stage comprises the period from the effectivity of the
Constitution on January 17, 1973 to the time the National Assembly is
convened by the incumbent President and the interim President and the
interim Prime Minister are chosen Article XVII, Sections 1 and 3[1]. The
existence of this stage as an obvious fact of the nation's political life was
recognized by the Court in Aquino vs. Commission on Elections, et al. (L-
40004, January 31, 1975, 62 SCRA 275), when it rejected the claim that,
under the 1973 Constitution, the President was in duty bound to convene
the interim National Assembly soon after the Constitution took effect.
The second stage embraces the period from the date the interim National
Assembly is convened to the date the Government described in Articles
VII to IX of the Constitution is inaugurated, following the election of the
members of the regular National Assembly (Article XVII, Section 1) and
the election of the regular President and Prime Minister,. This is as it
should be because it is recognized that the President has been accorded
the discretion to determine when he shall initially convene the interim
National Assembly, and his decision to defer the convocation thereof has
found overwhelming support by the sovereign people in two previous
referenda, therein giving reality to an interregnum between the
effectivity of the Constitution and the initial convocation of the interim
National Assembly, which interregnum, as aforesaid, constitutes the first
stage in the transition period.
Against this factual backdrop, it is readily discernible that neither of the
two sets of provisions embodied in the Constitution on the amendatory
process applied during the said first stage. Thus, Section 15, Article XVII
(Transitory Provisions) provides-
"Sec. 15. The interim National Assembly, upon special call by the interim
Prime Minister, may, by a majority vote of all its Members, propose
amendments to this Constitution. Such amendments shall take effect
when ratified in accordance with Article Sixteen hereof."
Patently, the reference to the "interim National Assembly" and the
"interim Prime Minister" limits the application thereof to the second
stage of the transition period, i.e.,., after the interim? National Assembly
shall have been convened and the interim Prime Minister shall have been
chosen.
Upon the other hand, the provisions of Article XVI (Amendments), to wit-
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
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 majority vote of all its Members, submit the question of
ceiling such a convention to the electorate in an election.
SEC. 2. Any amendment to, or revision of, this
Constitution shall be valid when ratified by a majority of
the votes cast in a plebiscite which shall be held not later
than three months after the approval of such amendment
or revision.
unequivocally contemplate amendments after the regular Government
shall have become fully operative, referring as they do to the National
Assembly which will come into being only at that time.
In the face of this constitutional hiatus, we are confronted with the
dilemma whether amendments to the Constitution may be effected
during the aforesaid first stage and, if in the affirmative, by whom and in
what manner such amendments may be proposed and ratified.
Susceptibility to change is one of the hallmarks of an Ideal Constitution.
Not being a mere declaration of the traditions of a nation but more the
embodiment of a people's hopes and aspirations, its strictures are not
unalterable. They are, instead, dynamic precepts intended to keep in
stride with and attuned to the living social organism they seek to fashion
and govern. If it is conceded that "the political or philosophical aphorism
of one generation is doubted by the next and entirely discarded by the
third," then a Constitution must be able to adjust to the changing needs
and demands of society so that the latter may survive, progress and
endure. On these verities, there can be no debate.
During the first stage of the transition period in which the Government is
at present - which is understandably the most critical - the need for
change may be most pressing and imperative, and to disavow the
existence of the right to amend the Constitution would be sheer political
heresy. Such view would deny the people a mechanism for effecting
peaceful change, and belie the organic conception of the Constitution by
depriving it of its means of growth. Such a result obviously could not have
been intended by the framers of the fundamental law.
It seems, however, that the happenstance that the first period would
come to pass before the convocation of the interim National Assembly
was not anticipated, hence, the omission of an express mandate to
govern the said situation in so far as amendments are concerned. But
such omission through inadvertence should not, because it cannot,
negate the sovereign power of the people to amend the fundamental
charter that governs their lives and their future and perhaps even the
very survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions on the
amendatory process that the intent was, instead, to provide a simpler
and more expeditious mode of amending the Constitution during the
transition period. For, while under Article XVI thereof, proposals for
amendment may be made directly by the regular National Assembly by a
vote of at least three-fourths of all its members, under Section 15 of
Article XVII, a bare majority vote of all the members of the National
Assembly would suffice for the purpose. The relaxation and the disparity
in the vote requirement are revealing. The can only signify a recognition
of the need to facilitate the adoption of amendments during the second
stage of the transition period so that the interim National Assembly will
be able, in a manner of speaking, to iron out the kinks in the new
Constitution, remove imperfections therein, and provide for changed or
changing circumstances before the establishment of the regular
Government. In this contest, therefore, it is inutile speculation to assume
that the Constitution was intended to render impotent or ar the
effectuation of needful change at an even more critical period - the first
stage. With greater reason, therefore, must the right and power to
amend the Constitution during the first stage of te transition period be
upheld, albeit within its express and implied constraints.
Neither can it be successfully argued, in the same context and in the
present posture, that the Constitution may be amended during the said
first stage only by convening the interim National Assembly. That is to say
and require that he said stage must first be brought to an end before any
amendment may be proposed and ratified. Settled jurisprudence does
not square with such a proposition. As aptly noted in Aquino vs.
Commission on Elections, et al., supra, the framers of the Constitution set
no deadline for the convening of the interim National Assembly because
96
they could not have foreseen how long the crises which impelled the
proclamation and justify the continued state of martial law would last.
Indeed, the framers committed to the sound judgment is not subject to
judicial review, save possibly to determine whether arbitrariness has
infected such exercise; absent such a taint, the matter is solely in the
keeping of the President. To thus content that only by convening the
interim National Assembly may the Constitution be amended at this time
would effectively override the judgement vested in the President, even in
default of any he has acted arbitrarily or gravely abuse his discretion.
Furthermore, to sustain such a contention would not only negate the
mandate so resoundingly expressed by the people in two national
referenda against the immediate convening of the interim National
Assembly, but as well deride their overwhelming approval of the manner
in which the President has exercised the legislative power to issue
proclamations, orders, decrees and instructions having the stature and
force of law.
Given the constitutional stalemate or impasse spawned by these
supervening developments, the logical query that compels itself for
resolution is: By whom, then, may proposals for the amendment of the
Constitution be made and in what manner may said proposals be ratified
by the people?
It is conventional wisdom that, conceptually, the constituent power is not
to be confuse with legislative power in general because the prerogative
to propose amendments to the Constitution is not in any sense embraced
within the ambit of ordinary law-making. Hence, there is much to
recommend the proposition that, in default of an express grant thereof,
the legislature - traditionally the delegated repository thereof - may not
claim it under a general grant of legislative authority. In the same vein,
neither would it be altogether unassailable to say that because by
constitutional tradition and express allocation the constituent power
under the Constitution is locate in the law-making agency and at this
stage of the transition period the law-making authority is firmly
recognized as being lodged in the President, the said constituent power
should now logically be in the hands of te President who may thus
exercise it in place of the interim National Assembly. Instead,, as pointed
out in Gonzales vs. Commission on Elections, et al., supra, the power to
amend the Constitution or to propose amendments thereto
... is part of the inherent powers of the people - as the
repository of sovereignty in a republican state, such as
ours - t o make, and, hence, to amend their own
Fundamental Law.
As such, it is undoubtedly a power that only the sovereign people, either
directly by themselves or through their chosen delegate, can wield. Since
it has been shown that the people, inadvertently or otherwise, have not
delegated that power to inadvertently or otherwise, have not delegated
that power to any instrumentality during the current stage of our hegira
from crisis to normalcy, it follows of necessity that the same remains with
them for them to exercise in the manner they see fit and through the
agency they choose. And, even if it were conceded that - as it is reputedly
the rule in some jurisdictions - a delegation of the constituent authority
amounts to a complete divestiture from the people of the power
delegated which they may not thereafter unilaterally reclaim from the
delegate, there would be no violence donde to such rule, assuming it to
be applicable here, inasmuch as that power, under the environmental
circumstance adverted to, has not been delegated to anyone in the first
place. The constituent power during the first stage of the transition
period belongs to and remains with the people, and accordingly may be
exercised by them - how and when - at their pleasure.
At this juncture, a flashback to the recent and contemporary political
ferment in the country proves revelatory. The people, shocked and
revolted by the "obvious immorality" of the unabashed manner by which
the delegates to the Constitutional Convention virtually legislated
themselves into office as ipso facto members of the interim National
Assembly by the mere fiat of voting for the transitory provisions of the
Constitution. and the stark reality that the unwieldy political monstrosity
that the interim Assembly portended to be would have proven to be a
veritable drain on the meager financial resources of a nation struggling
for survival, have unequivocally put their foot down, as it were, on the
convocation thereof. But this patently salutary decision of the people
proved to be double-edged. It likewise bound the political machinery of
97
the Government in a virtual straight-jacket and consigned the political
evolution of the nation into a state of suspended animation. Faced with
the ensuing dilemma, the people understandably agitated for a solution.
Through consultations in the barangays and sanggunian assemblies, the
instrumentalities through which the people's voice is articulated in the
unique system of participatory democracy in the country today, the
underpinnings for the hastening of the return to constitutional normalcy
quickly evolved into an overwhelming sentiment to amend the
Constitution in order to replace the discredited interim National Assembly
with what the people believe will be an appropriate agency to eventually
take over the law-making power and thus pave the way for the early
lifting of martial rule. In pursuit of this sentiment, and to translate its
constraints into concrete action, the Pambansang Katipunan ng
Barangay, the Pambansang Katipunan ng mga Kabataang Barangay, the
Lupong Tagapagpaganap of the Katipunan ng mga Barangay, the
Pambansang Katipunan ng mga Kabataang Barangay the Lupong
Tagapagpaganap of the Katipunan ng mga Sanggunian, and finally the
Batasang Bayan, to a man and as one voice, have come forward with
definitive proposals for the amendment of the Constitution, and,
choosing the President the only political arm of the State at this time
through which that decision could be implemented and the end in view
attained as their spokesman, proposed the amendments under challenge
in the cases at bar.
In the light of this milieu and its imperatives, one thing is inescapable: the
proposals now submitted to the people for their ratification in the
forthcoming referendum-plebiscite are factually not of the President;
they are directly those of the people themselves speaking thru their
authorized instrumentalities. The President merely formalized the said
proposals in Presidential Decree No. 1033. It being conceded in all
quarters that sovereignty resides in the people and it having been
demonstrated that their constituent power to amend the Constitution
has not been delegated by them to any instrumentality of the
Government during the present stage of the transition period of our
political development, the conclusion is ineluctable that their exertion of
that residuary power cannot be vulnerable to any constitutional
challenge as being ultra vires. Accordingly, without venturing to rule on
whether or not the President is vested with constituent power as it does
not appear necessary to do so in the premises the proposals here
challenged, being acts of the sovereign people no less, cannot be said to
be afflicted with unconstitutionality. A fortiori, the concomitant authority
to call a plebiscite and to appropriate funds therefor is even less
vulnerable not only because the President, in exercising said authority has
acted as a mere alter ego of the people who made the proposals, but
likewise because the said authority is legislative in nature rather than
constituent.
III
Third Issue
Little need be said of the claimed insufficiency and impropriety of the
submission of the proposed amendments for ratification from the
standpoint of time. The thesis cannot be disputed that a fair submission
presupposes an adequate time lapse to enable the people to be
sufficiently enlightened on the merits or demerits of the amendments
presented for their ratification or rejection. However, circumstances
there are which unmistakably demonstrated that the is met. Even if the
proposal appear to have been formalized only upon the promulgation of
Presidential Decree No. 1033 on September 22, 1976, they are actually the
crystallization of sentiments that for so long have preoccupied the minds
of the people and their authorized representatives, from the very lowest
level of the political hierarchy. Hence, unlike proposals emanating from a
legislative body, the same cannot but be said to have been mulled over,
pondered upon, debated, discussed and sufficiently understood by the
great masses of the nation long before they ripened into formal
proposals.
Besides. it is a fact of which judicial notice may well be taken that in the
not so distant past when the 1973 Constitution was submitted to the
people for ratification, an all-out campaign, in which all the delegates of
the Constitutional Convention reportedly participated, was launched to
acquaint the people with the ramifications and working of the new
system of government sought to be inaugurated thereunder. It may thus
well be assumed that the people in general have since acquired, in the
least, a working knowledge of the entirety of the Constitution. The
98
changes now proposed the most substantial of which being merely the
replacement of the interim National assembly with another legislative
arm for the Government during the transition period until the regular
National Assembly shall have been constituted do not appear to be of
such complexity as to require considerable time to be brought home to
the full understanding of the people. And, in fact, the massive and wide-
ranging informational and educational campaign to this end has been and
still is in full swing, with all the media the barangay, the civic and sectoral
groups, and even the religious all over the land in acting and often
enthusiastic if not frenetic involvement.
Indeed, when the people cast their votes on October 16, a negative vote
could very well mean an understanding of the proposals which they
reject; while an affirmative vote could equally be indicative Of such
understanding and/or an abiding credence in the fidelity with which the
President has kept the trust they have confided to him as President and
administrator of martial rule
IV
Conclusion
It is thus my considered view that no question viable for this court to pass
judgment upon is posed. Accordingly, I vote for the outright dismissal of
the three petitions at bar.
FERNANDO, J., concurring and dissenting:
These three petitions, the latest in a series of cases starting from Planas v.
Commission on Elections continuing with the epochal resolution in
Javellana v. Executive Secretary and followed successively in three crucial
decisions, Aquino v. Ponce Enrile Aquino v. Commission on Elections, and
Aquino v Military Commission,5 manifest to the same degree the delicate
and awesome character of the function of judicial review. While previous
rulings supply guidance and enlightenment, care is to be taken to avoid
doctrinaire rigidity unmindful of altered circumstances and the urgencies
of the times. It is inappropriate to resolve the complex problems of a
critical period without full awareness of the consequences that flow from
whatever decision is reached. Jural norms must be read in the context of
social facts, There is need therefore of adjusting inherited principles to
new needs. For law, much more so constitutional law, is simultaneously a
reflection of and a force in the society that it controls. No quality then can
be more desirable in constitutional adjudication than that intellectual and
imaginative insight which goes into the heart of the matter. The judiciary
must survey things as they are in the light of what they must become It
must inquire into the specific problem posed not only in terms of the
teaching of the past but also of the emerging political and legal theory,
especially so under a leadership notable for its innovative approach to
social problems and the vigor of its implementation. This, on the one side.
It must equally be borne in mind through that this Court must be
conscious of the risk inherent in its being considered as a mere
subservient instrument of government policy however admittedly
salutary or desirable. There is still the need to demonstrate that the
conclusion reached by it in cases appropriate for its determination has
support in the law that must be applied. To my mind that was the norm
followed, the conclusion reached being that the three petitions be
dismissed. I am in agreement. It is with regret however that based on my
reading of past decisions, both Philippine and American, and more
specifically my concurring opinion in Aquino v. Ponce Enrile, I must
dissent from the proposition set forth in the able and scholarly opinion of
Justice Martin that there is concentration of power in the President
during a crisis government. Consequently, I cannot see my way clear to
accepting the view that the authority to propose amendments is not
open to question. At the very least, serious doubts could be entertained
on the matter.
1. With due respect then, I have to dissociate myself from my brethren
who would rule that governmental powers in a crisis government,
following Rossiter, "are more or less concentrated in the President."
Adherence to my concurring and dissenting opinion in Aquino v. Ponce
Enrile leaves me no choice.
It must be stated at the outset that with the sufficiency of doctrines
supplied by our past decisions to point the way to what I did consider the
appropriate response to the basic issue raised in the Aquino and the
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other habeas corpus petitions resolved jointly, it was only in the latter
portion of my opinion that reference was made to United States Supreme
Court pronouncements on martial law, at the most persuasive in
character and rather few in number "due no doubt to the, absence in the
American Constitution of any provision concerning it." 7 It was
understandable then that it was only after the landmark Ex parte Milligan
case, that commentators like Cooley in 1868 and Watson in 1910 paid
attention, minimal by that, to the subject." It was next set forth that in
the works on American constitutional law published in this century
specially after the leading cases of cases Sterling v. Constant in and
Duncan v. Kahanamoku, "there was a fuller treatment of the question of
martial law While it is the formulation of Willoughby that for me is most
acceptable, my opinion did take note that another commentator, Burdick,
came out earlier with a similar appraisal.10 Thus: "So called martial law,
except in occupied territory of an enemy is merely the calling in of the aid
of military forces by the executive, who is charged with the enforcement
of the law, with or without special authorization by the legislature. Such
declaration of martial law does not suspend the civil law, though it may
interfere with the exercise of one's ordinary rights. The right to call out
the military forces to maintain order and enforce the law is simply part of
the Police power, It is only justified when it reasonably appears
necessary, and only justifies such acts as reasonably appear necessarily to
meet the exigency, including the arrest, or in extreme cases the. killing of
those who create the disorder or oppose the authorities. When the
exigency is over the members of the military forces are criminally and
civilly habit for acts done beyond the scope of reasonable necessity.
When honestly and reasonably coping with a situation of insurrection or
riot a member of the military forces cannot be made liable for his acts,
and persons reasonably arrested under such circumstances will not,
during the insurrection or riot, be free by writ of habeas corpus." 11 When
the opinion cited Willoughby's concept of martial law, stress was laid on
his being "Partial to the claims of liberty."12 This is evident in the explicit
statement from his work quoted by me: "There is, then, strictly speaking,
no such thing in American law as a declaration of martial law whereby
military law is substituted for civil law. So-called declarations of martial
law are, indeed, often made but their legal effect goes no further than to
warn citizens that the military powers have been called upon by the
executive to assist him in the maintenance of law and order, and that,
while the emergency lasts, they must, upon pain of arrest and
punishment not commit any acts which will in any way render more
difficult the restoration of order and the enforcement of law. Some of the
authorities stating substantially this doctrine are quoted in the footnote
below Nor did I stop there. The words of Willis were likewise cited:
"Martial law proper, that is, military law in case of insurrection, riots, and
invasions, is not a substitute for the civil law, but is rather an aid to the
execution of civil law. Declarations of martial law go no further than to
warn citizens that the executive has called upon the military power to
assist him in the maintenance of law and order. While martial law is in
force, no new powers are given to the executive and no civil rights of the
individual, other than the writ of habeas corpus, are suspended. The
relations between the citizen and his stature unchanged."14
The conclusion reached by me as to the state of American federal law on
the question of martial law was expressed thus: 4'1 It is readily evident
that even when Milligan supplied the only authoritative doctrine, Burdick
and Willoughby did not ignore the primacy of civil liberties. Willis wrote
after Sterling. It would indeed be surprising if his opinion were otherwise.
After Duncan, such an approach becomes even more strongly fortified.
Schwartz, whose treatise is the latest to be published, has this summary
of what he considers the present state of American law: 'The Milligan and
Duncan cases show plainly that martial law is the public law of necessity.
Necessities alone calls it forth, necessity justifies its exercise; and
necessities measures the extended degree to which it may be It is, the
high Court has affirmed, an unbending rule of law that the exercise of
military power, where the rights of the citizen are concerned, may, never
be pushed beyond what the exigency requires. If martial law rule survive
the necessities on which alone it rests, for even a single minute it
becomes a mere exercise of lawless violence.' Further: Sterling v.
Constantin is of basic importance. Before it, a number of decisions,
including one the highest Court, went or on the theory that the executive
had a free hand in taking martial law measures. Under them, it has been
widely supposed that in proclamation was so far conclusive that any
action taken under it was immune from judicial scrutiny. Sterling v.
Constantin definitely discredits these earlier decisions and the doctrine of
conclusiveness derived from them. Under Sterling v. Constantin, where
martial law measures impinge upon personal or property rights-normally
100
beyond the scope of military power, whose intervention is lawful only
because an abnormal Actuation has made it necessary the executive's
ipse dixit is not of itself conclusive of the necessity.'"15
There was likewise an effort on my part to show what for me is the legal
effect of martial law being expressly provided for in the Constitution
rather than being solely predicated on the common law power based on
the urgent need for it because of compelling circumstances incident to
the state of actual clash of arms: "It is not to be lost sight of that the basis
for the declaration of martial law in the Philippines is not mere necessity
but an explicit constitutional provision. On the other hand, Milligan,
which furnished the foundation for Sterling and Duncan had its roots in
the English common law. There is pertinence therefore in ascertaining its
significance under that system. According to the noted English author,
Dicey: 'Martial law,' in the proper sense of that term, , in which - it means
the suspension of ordinary law and the temporary government of a
country or parts of it be military tribunals, is unknown to the law of
England. We have nothing equivalent to what is called in France the
"Declaration of the State of Siege," under which the authority ordinarily
vested in the civil power for the maintenance of order and police passes
entirely to the army (autorite militaire). This is an unmistakable proof of
the permanent supremacy of the law under our constitution. There was
this qualification: 'Martial law is sometimes employed as a name for the
common law right of the Crown and its servants to repel force by force in
the case of invasion, insurrection, riot, or generally of any violent
resistance to the law. This right, or power, is essential to the very
existence of orderly government, and is most assuredly recognized in the
most ample manner by the law of England. It is a power which has in itself
no special connection with the existence of an armed force. The Crown
has the right to put down breaches of the peace. Every subject, whether
a civilian or a soldier, whether what is called a servant of the
government,' such for example as a policeman, or a person in no way
connected with the administration, not only has the right, but is, as a
matter of legal duty, bound to assist in putting down breaches of the
peace. No doubt policemen or soldiers are the persons who, as being
specially employed in the maintenance of order, are most generally called
upon to suppress a riot, but it is clear that all loyal subjects are bound to
take their part in the suppression of riots."16
Commitment to such an approach results in my inability to subscribe to
the belief that martial law in terms of what is provided both in the 1935
and the present Constitution, affords sufficient justification for the
concentration of powers in the Executive during periods of crisis. The
better view, considering the juristic theory on which our fundamental law
rests is that expressed by Justice Black in Duncan v. Kahanamoku:
"Legislatures and courts are not merely cherished American institutions;
they are indispensable to our government. 17 If there has been no
observance of such a cardinal concept at the present, it is due to the fact
that before the former Congress could meet in regular session anew, the
present Constitution was adopted, abolishing it and providing for an
interim National Assembly, which has not been convened.18 So I did view
the matter.
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion.
Reference was made to the first chapter on his work on Constitutional
Dictatorship where he spoke of martial rule as "a device designed for use
in the crisis of invasion or rebellion. It may be most precisely defined as an
extension of military government to the civilian population, the
substitution of the will of a military commander for the will of the
people's elected government."19 Since, for me at least, the Rossiter
characterization of martial law has in it more of the common law
connotation, less than duly mindful of the jural effects of its inclusion in
the Constitution itself as a legitimate device for coping with emergency
conditions in times of grave danger, but always subject to attendant
limitations in accordance with the fundamental postulate of a charter's
supremacy, I felt justified in concluding: "Happily for the Philippines, the
declaration of martial law lends itself to the interpretation that the
Burdick, Willoughby, Willis, Schwartz formulations paying due regard to
the primacy of liberty possess relevance. lt cannot be said that the martial
rule concept of Rossiter, latitudinarian in scope, has been adopted, even
on the assumption that it can be reconciled with our Constitution. What is
undeniable is that President Marcos has repeatedly maintained that
Proclamation No. 1081 was precisely based on the Constitution and that
the validity of acts taken there under could be passed upon by the
Supreme court. For me that is quite reassuring, persuaded as I am
likewise that the week- of Rossiter is opposed to the fundamental
concept of our polity, which puts a premium on freedom."20
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3. Candor and accuracy compel the admission that such a conclusion his
to be qualified. For in the opinion of the Court in the aforecited Aquino v.
Commission on Elections, penned by Justice Makasiar, the proposition
was expressly affirmed "that as Commander-in-Chief and enforcer or
administrator of martial law, the incumbent President of the Philippines
can reclamations, orders and decrees during the period Martial Law
essential to the security and preservation of the Republic, to the defense
of the political and social liberties of the people and to the institution of
reforms to prevent the resurgence of rebellion or insurrection or
secession or the threat thereof as well as to meet the impact of a
worldwide recession, inflation or economic crisis which presently
threatens all nations including highly developed countries." 21 To that
extent, Rossiter's view mainly relied upon, now possesses Juristic
significant in this jurisdiction. What, for me at least, gives caused for
concern is that with the opinion of the Court this intrusion of what I
would consider an alien element in the limited concept of martial law as
set forth in the Constitution would be allowed further incursion into the
corpus of the law, with the invocation of the view expressed in the last
chapter of his work approving tile "concentration of governmental power
in a democracy [as] a corrective to the crisis inefficiencies inherent in the
doctrine of the separation of powers." 22 It is to the credit of the late
Professor Rossiter as an objective scholar that in the very same last
chapter, just three pages later, he touched explicitly on the undesirable
aspect of a constitutional dictatorship. Thus: "Constitutional Dictatorship
is a dangerous thing. A declaration of martial law or the passage of an
enabling act is a step which must always be feared and sometimes
bitterly resisted, for it is at once an admission of the incapacity of
democratic institutions to defend the order within which they function
and a too conscious employment of powers and methods long ago
outlawed as destructive of constitutional government. Executive
legislation, state control of popular liberties, military courts, and arbitrary
executive action were governmental features attacked by the men who
fought for freedom not because they were inefficient or unsuccessful,
but because they were dangerous and oppressive. The reinstitution of
any of these features is a perilous matter, a step to be taken only when
the dangers to a free state will be greater if the dictatorial institution is
not adopted."23
4. It is by virtue of such considerations that I find myself unable to share
the view of those of my brethren who would accord recognition to the
Rossiter concept of concentration of governmental power in the
Executive during periods of crisis. This is not to lose sight of the
undeniable fact that in this country through the zeal, vigor, and energy
lavished on projects conducive to the general welfare, considerable
progress has been achieved under martial rule. A fair summary may be
found in a recent address of the First Lady before the delegates to the
1976 international Monetary Fund-World Bank Joint Annual Meeting:
"The wonder is that so much has been done in so brief a time. Since
September 1972, when President Marcos established the crisis
government, peace and order have been restored in a country once
avoided as one of the most unsafe in the world. We have liberated
millions of Filipino farmers from the bondage of tenancy, in the most
vigorous and extensive implementation of agrarian reform."24 Further,
she said: "A dynamic economy has replaced a stagnant order, and its
rewards are distributed among the many, not hoarded by a few. Our
foreign policy, once confined by fear and suspicion to a narrow alley of
self-imposed isolation, now travels the broad expressways of friendship
and constructive interaction with the whole world, these in a new spirit of
confidence and self-reliance. And finally, forced to work out our own
salvation, the Filipino has re-discovered the well-springs of his strength
and resilience As Filipinos, we have found our true Identity. And having
broken our crisis of Identity, we are no longer apologetic and afraid. "25
The very Idea of a crisis, however, signifies a transitory, certainly not a
permanent, state of things. President Marcos accordingly has not been
hesitant in giving utterance to his conviction that full implementation of
the modified parliamentary system under the present Constitution should
not be further delayed. The full restoration of civilian rule can thus be
expected. That is more in accord with the imperatives of a constitutional
order. It should not go unnoticed either that the President has referred to
the present regime as one of "constitutional authoritarianism." That has a
less objectionable ring, authority being more Identified with the Idea of
law, as based on right, the very antithesis of naked force, which to the
popular mind is associated with dictatorship, even if referred to as
"constitutional."
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For me likewise, that equally eminent scholar Corwin, also invoked in the
opinion of the Court, while no doubt a partisan of d strong Presidency,
was not averse to constitutional restraints even during periods of crisis.
So I would interpret this excerpt from the fourth edition of his classic
treatise on the Presidency: "A regime of martial law may be
compendiously, if not altogether accurately, defined as one in which the
ordinary law, as administered by the ordinary courts, is superseded for
the time being by the will of a military commander. It follows that, when
martial law is instituted under national authority, it rests ultimately on the
will of the President of the United States in his capacity as Commander-in-
Chief. It should be added at once, nevertheless, that the subject is one in
which the record of actual practice fails often to support the niceties of
theory. Thus, the employment of the military arm in the enforcement of
the civil law does not invariably, or even usually, involve martial law in the
strict sense, for, as was noted in the preceding section, soldiers are often
placed simply at the disposal and direction of the civil authorities as a kind
of supplementary police, or posse comitatus on the other hand be reason
of the discretion that the civil authorities themselves are apt to vest in the
military in any emergency requiring its assistance, the line between such
an employment of the military and a regime of martial law is frequently
any but a hard and fast one. And partly because of these ambiguities the
conception itself of martial law today bifurcates into two conceptions,
one of which shades off into military government and the other into the
situation just described, in which the civil authority remains theoretically
in control although dependent on military aid. Finally, there is the
situation that obtained throughout the North during the Civil War, when
the privilege of the writ of habeas corpus was suspended as to certain
classes of suspects, although other characteristics of martial law were
generally absent."26
It is by virtue of the above considerations that, with due respect to the
opinion of my brethren, I cannot yield assent to the Rossiter view of
concentration of governmental powers in the Executive during martial
law.
5 There is necessity then, for me at least, that the specific question raised
in all three petitions be squarely faced. It is to the credit of the opinion of
the Court that it did so. The basic issue posed concerns the boundaries of
the power of the President during this period of martial law, more
precisely whether it covers proposing amendments to the Constitution.
There is the further qualification if the stand of respondents be taken into
account that the interim National Assembly has not been convened and is
not likely to be called into session in deference to the wishes of the
people as expressed in three previous referenda. It is the ruling of the
majority that the answer be in the affirmative, such authority being well
within the area of presidential competence. Again I find myself unable to
join readily in that conviction. It does seem to me that the metes and
bounds of the executive domain, while still recognizable, do appear
blurred. This is not to assert that there is absolutely no basis for such a
conclusion, sustained as it is by a liberal construction of the principle that
underlies Aquino v. Commission on Elections as to the validity of the
exercise of the legislative prerogative by the President as long as the
interim National Assembly is not For me, the stage of certitude has not
been reached. I cannot simply ignore the vigorous plea of petitioners that
there is a constitutional deficiency consisting in the absence of any
constituent power on the part of the President, the express provision of
the Constitution conferring it on the by team National Assembly.27 The
learned advocacy reflected in the pleadings as well as the oral discourse
of Solicitor General Estelito P. Mendoza 21 failed to erase the grave
doubts in my mind that the Aquino doctrine as to the possession of
legislative competence by the President during this period of transition
with the interim lawmaking body not called into session be thus
expanded. The majority of my brethren took that step. I am not prepared
to go that far. I will explain why.
The way for me, is beset with obstacles. In the first place, such an
approach would lose sight of the distinction between matters legislative
and constituent. That is implicit in the treatise on the 1935 Constitution by
Justices Malcolm and Laurel In their casebook published the same year,
one of the four decisions on the subject of constitutional amendments is
Ellingham v. Dye 31 which categorically distinguished between
constituent and legislative powers. Dean Sinco, a well-known authority
on the subject, was quite explicit. Thus: "If there had been no express
provision in the Constitution granting Congress the power to propose
amendments, it would be outside its authority to assume that power.
Congress may not claim it under the general grant of legislative power for
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such grant does not carry with it the right 'to erect the state, institute the
form of its government,' which is considered a function inherent in the
people. Congressional law- making authority is limited to the power of
approving the laws 'of civil conduct relating to the details and particulars
of the government instituted,' the government established by the
people."12 If that distinction be preserved, then for me the aforecited
Aquino decision does not reach the heart of the matter. Nor is this all. In
the main opinion of Justice Makasiar as well as that of the then Justice,
now Chief Justice, Castro, support for the ruling that the President
cannot be deemed as devoid of legislative power during this transition
stage is supplied by implications from explicit constitutional provisions.13
That is not the case with the power to propose amendments. It is solely
the interim National Assembly that is mentioned. That is the barrier that
for me is well-nigh insurmountable. If I limit myself to entertaining doubts
rather than registering a dissent on this point, it is solely because of the
consideration, possessed of weight and significance, that there may be
indeed in this far-from-quiescent and static period a need for al.
amendments. I do not feel confident therefore that a negative vote on
my part would be warranted. What would justify the step taken by the
President, even if no complete acceptance be accorded to the view that
he was a mere conduit of the barangays on this matter, is that as noted in
both qualified concurrences by Justices Teehankee and Munoz Palma in
Aquino, as far as the legislative and appropriately powers are concerned,
is the necessity that unless such authority be recognized, there may be
paralyzation of governmental activities, While not squarely applicable,
such an approach has, to my mind, a persuasive quality as far as the
power to propose amendments is concerned.
Thus I would confine myself to the expression of serious doubts on the
question rather than a dissent.
6. The constitutional issue posed as thus viewed leaves me free to concur
in the result that the petitions be dismissed. That is to accord respect to
the principle that judicial review goes no further than to checking clear
infractions of the fundamental law, except in the field of human rights
where a much greater vigilance is required, That is to make of the
Constitution a pathway to rather than a barrier against a desirable
objective. -As shown by my concurring and dissenting opinion in
Tolentino Commission on Elections '34 a pre-martial law decision, the
fundamental postulate that sovereignty resides in the people exerts a
compelling force requiring the judiciary to refrain as much as possible
from denying the people the opportunity to make known their wishes on
matters of the utmost import for the life of the nation, Constitutional
amendments fall in that category. I am fortified in that conviction by the
teaching of persuasive American decisions There is reinforcement to such
a conclusion from retired Chief Justice Concepcion's concurring and
dissenting opinion in Aytona v. Castillo,17 Which I consider applicable to
the present situation. These are his words: "It is well settled that the
granting of writs of prohibition and mandamus is ordinarily within the
sound discretion of the courts, to be exercised on equitable principles,
and that said writs should be issued when the right to the relief is clear *
* by As he noted in his ponencia in the later case of Gonzales v.
Hechanova,19 an action for prohibition, while petitioner was sustained in
his stand, no injunction was issued. This was evident in the dispositive
portion where judgment was rendered "declaring that respondent
Executive Secretary had and has no power to authorize the importation
in question; that he exceeded his jurisdiction in granting said authority;
that said importation is not sanctioned by law and is contrary to its
provisions; and that, for lack of the requisite majority, the injunction
prayed for must be and is, accordingly, denied." 40 With the illumination
thus supplied, it does not necessarily follow that even a dissent on my
part would necessarily compel that I vote for the relief prayed for.
Certainly this is not to belittle in any way the action taken by petitioners in
filing these suits. That, for me, is commendable. It attests to their belief in
the rule of law. Even if their contention as to lack of presidential power
be accepted in their entirety, however, there is still discretion that may be
exercised on the matter, prohibition being an equitable remedy. There
are, for me, potent considerations that argue against acceding to the
plea. With the prospect of the interim National Assembly being convened
being dim, if not non- existent, if only because of the results in three
previous referenda, there would be no constitutional agency other than
the Executive who could propose amendments, which, as noted. may
urgently press for adoption. Of even greater weight, to my mind, is the
pronouncement by the President that the plebiscite is intended not only
to solve a constitutional anomaly with the country devoid of a legislative
body but also to provide. the machinery be which the termination of
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martial law could be hastened. That is a consummation devoutly to be
wished. That does militate strongly against the stand of petitioners. The
obstruction they would pose may be fraught with pernicious
consequences. It may not be amiss to refer anew to what I deem the
cardinal character of the jural postulate explicitly affirmed in both the
1935 and the present Constitutions that sovereignty resides in the people.
So I made clear in Tolentino v. Commission on Elections and thereafter in
my dissent in Javellana v. The Executive Secretary" and my concurrence in
Aquino v. Commission on Elections. 42 The destiny of the country lies in
their keeping. The role of leadership is not to be minimized. It is crucial it
is of the essence. Nonetheless, it is their will, if given expression in a
manner sanctioned by law and with due care that there be no mistake in
its appraisal, that should be controlling. There is all the more reason then
to encourage their participation in the power process. That is to make the
regime truly democratic. Constitutional orthodoxy requires, however,
that the fundamental law be followed. So I would interpret Laski, 43
Corwin, 44 Lerner,45, Bryn-Jones, 46 and McIver.47
7. There is reassurance in the thought that this Court has affirmed its
commitment to the principle that the amending process gives rise to a
justiciable rather than a political question. So, it has been since the
leading case of Gonzales v. Commission on Election S.48 It has since then
been followed in Tolentino v. Commission on Elections 49 Planas v.
Commission on Elections," and lastly, in Javellana v. The Executive
Secretary This Court did not heed the vigorous plea of the Solicitor
General to resurrect the political question doctrine announced in
Mabanag v. Lopez Vito. 52 This is not to deny that the federal rule in the
United States as set forth in the leading case of Coleman v. Miller , 53 a
1939 decision, and relatively recent State court decisions, supply
ammunition to such a contention.,51 That may be the case in the United
States, but certainly not in this jurisdiction. Philippine constitutional
tradition is to the contrary. It can trace its origin to these words in the
valedictory address before the 1934-35 Constitutional Convention by the
illustrious Claro M. Recto: "It is one of the paradoxes a democracy that
the people of times place more confidence in instrumentalities of the
State other than those directly chosen by them for the exercise of their
sovereignty It can be said with truth, therefore, that there has invariably
been a judicial predisposition to activism rather than self-restraint. The
thinking all these years has been that it goes to the heart of
constitutionalism. It may be said that this Court has shunned the role of a
mere interpreter; it did exercise at times creative power. It has to that
extent participated in the molding of policy, It has always recognized that
in the large and undefined field of constitutional law, adjudication
partakes of the quality of statecraft. The assumption has been that just
because it cannot by itself guarantee the formation, much less the
perpetuation of democratic values or, realistically, it cannot prevail
against the pressure of political forces if they are bent in other directions.
it does not follow that it should not contribute its thinking to the extent
that it can. It has been asked, it will continue to be asked, to decide
momentous questions at each critical stage of this nation's life.
There must be, however, this caveat. Judicial activism gives rise to
difficulties in an era of transformation and change. A society in flux calls
for dynamism in "he law, which must be responsive to the social forces at
work. It cannot remain static. It must be sensitive to life. This Court then
must avoid the rigidity of legal Ideas. It must resist the temptation of
allowing in the wasteland of meaningless abstractions. It must face
stubborn reality. It has to have a feel for the complexities of the times.
This is not to discount the risk that it may be swept too far and too fast in
the surge of novel concepts. The past too is entitled to a hearing; it
cannot just be summarily ignored. History still has its uses. It is not for this
Court to renounce the virtue of systematic jural consistency. It cannot
simply yield to the sovereign sway of the accomplished fact. It must be
deaf to the dissonant dialectic of what appears to be a splintered society.
It should strive to be a factor for unity under a rule of law. There must be,
on its part, awareness of the truth that a new juridical age born before its
appointed time may be the cause of unprecedented travail that may not
end at birth. It is by virtue of such considerations that I did strive for a
confluence of principle and practicality. I must confess that I did approach
the matter with some misgivings and certainly without any illusion of
omniscience. I am comforted by the thought that immortality does not
inhere in judicial opinions. 8. 1 am thus led by my studies on the subject of
constitutional law and, much more so, by previous judicial opinions to
concur in the dismissal of the petitions. If I gave expression to byes not
currently fashionable, it is solely due to deeply-ingrained beliefs.
Certainly, I am the first to recognize the worth of' the social and
105
economic reforms so needed by the troubled present that have been
introduced and implemented. There is no thought then of minimizing,
much less of refusing to concede, the considerable progress that has
been made and the benefits that have been achieved under this
Administration. Again, to reiterate one of my cherished convictions, I
certainly approve of the adherence to the fundamental principle of
popular sovereignty which, to be meaningful however, requires both
freedom in its manifestation and accuracy in ascertaining what it wills.
Then, too, it is fitting and proper that a distinction was made between
two aspects of the coming poll, the referendum and the plebiscite. It is
only the latter that is impressed with authoritative force. So the
Constitution requires. Lastly, there should be, as I did mention in my
concurrence in Aquino v. Commission on Elections,56 full respect for free
speech and press, free assembly and free association. There should be no
thought of branding the opposition as the enemy and the expression of
its views as anathema, Dissent, it is fortunate to note, has been
encouraged. It has not been Identified with disloyalty. That ought to be
the case, and not solely due to presidential decrees. Constructive criticism
is to be welcomed not so much because of the right to be heard but
because there may be something worth hearing. That is to ensure a true
ferment of Ideas, an interplay of knowledgeable minds. There are though
well- defined limits, One may not advocate disorder in the name of
protest, much less preach rebellion under the cloak of dissent.. What I
mean to stress is that except on a showing of clear and present danger,
there must be respect for the traditional liberties that make a society
truly free.
TEEHANKEE, J., dissenting:
1. On the merits: I dissent from the majority's dismissal of the petitions for
lack of merit and vote to grant the petitions for the following reasons and
considerations: 1. It is undisputed that neither the 1935 Constitution nor
the 1973 Constitution grants to the incumbent President the constituent
power to propose and approve amendments to the Constitution to be
submitted to the people for ratification in a plebiscite. The 1935
Constitution expressly vests the constituent power in Congress, be a
three-fourths vote of all its members, to propose amendments or call a
constitutional convention for the purpose The 1973 Constitution
expressly vests the constituent power in the regular National Assembly to
propose amendments (by a three-fourths vote of all its members) or "call
a constitutional convention" (by a two-thirds vote of all its members) or
"submit the question of calling such convention to the electorate in an
election" (by a majority vote of all its members ) .2
The transitory provisions of the 1973 Constitution expressing vest the
constituent power during the period of transition in the interim National
Assembly "upon special call be the Prime Minister (the incumbent
President 3)... by a majority ore of all its members (to) propose
amendments."
Since the Constitution provides for the organization of the essential
departments of government, defines and delimits the powers of each and
prescribes the manner of the exercise of such powers, and the
constituent power has not been granted to but has been withheld from
the President or Prime Minister, it follows that the President's questioned
decrease proposing and submitting constitutional amendments directly
to the people (without the intervention of the interim National Assembly
in whom the power is expressly vested) are devoid of constitutional and
legal basis.
2. The doctrine in the leading case of Tolentino vs. Comelec is controlling
in the case at bar In therein declaring null and void the acts of the 1971
Constitutional Convention and of the Comelec in calling a plebiscite with
the general elections scheduled for November 8, 1971 for the purpose of
submitting for the people's ratification an advance amendment reducing
the voting age from 21 years to 18 years, and issuing writs of prohibition
and injunction against the holding of the plebiscite, this Court speaking
through Mr. Justice Barredo ruled that --The Constitutional provisions on
amendments "dealing with the procedure or manner of amending the
fundamental law are binding upon the Convention and the other
departments of the government, (land) are no less binding upon the
people
As long as an amendment is formulated and submitted
under the aegis of the present Charter, any proposal for
such amendment which is not in conformity with the
106
 letter, spirit and intent of the Charter for effecting
amendments, cannot receive the sanction of this Court ;8
The real issue here cannot be whether or not the amending process
delineated by the present Constitution may be disregarded in favor of
allowing the sovereign people to express their decision on the proposed
amendments, if only because it is evident that the very Idea of departing
from the fundamental law is anachronistic in the realm of
constitutionalism and repugnant to the essence of the rule of law,"; 9 and
-Accordingly barred the plebiscite as improper and premature, since "the
provisional nature of the proposed amendments and the manner of its
submission to the people for ratification or rejection" did not "conform
with the mandate of the people themselves in such regard, as expressed
in the Constitution itself', 10 i.e. the mandatory requirements of the
amending process as set forth in the Article on Amendments.
3. Applying the above rulings of Tolentino to the case at bar, mutatis,
mutandis, it is clear that where the proposed amendments are violative
of the Constitutional mandate on the amending process not merely for
being a "partial amendment" of a "temporary or provisional character"
(as in Tolentino) but more so for not being proposed and approved by
the department vested by the Constitution with the constituent power to
do so, and hence transgressing the substantive provision that it is only
the interim National Assembly, upon special call of the interim Prime
Minister, bu a majority vote of all its members that may propose the
amendments, the Court must declare the amendments proposals null and
void.
4. This is so because the Constitution is a "superior paramount law,
unchangeable by ordinary means" 11 but only by the particular mode and
manner prescribed therein by the people. As stressed by Cooley, "by the
Constitution which they establish, (the people) not only tie up the hands
of their official agencies but their own hands as well; and neither the
officers of the State, nor the whole people as an aggregate body, are at
liberty to take action in opposition to this fundamental law." 12
The vesting of the constituent power to propose amendments in the
legislative body (the regular National Assembly) or the interim National
Assembly during the transition period) or in a constitutional convention
called for the purpose is in accordance with universal practice. "From the
very necessity of the case" Cooley points out "amendments to an existing
constitution, or entire revisions of it, must be prepared and matured by
some body of representatives chosen for the purpose. It is obviously
impossible for the whole people to meet, prepare, and discuss the
proposed alterations, and there seems to be no feasible mode by which
an expression of their will can be obtained, except by asking it upon the
single point of assent or disapproval." This body of representatives
vested with the constituent - power "submits the result of their
deliberations" and "puts in proper form the questions of amendment
upon which the people are to pass"-for ratification or rejection.13
5. The Court in Tolentino thus rejected the argument "that the end
sought to be achieved is to be desired" and in denying reconsideration in
paraphrase of the late Claro M. Recto declared that "let those who would
put aside, invoking grounds at best controversial, any mandate of the
fundamental purportedly in order to attain some laudable objective bear
in mind that someday somehow others with purportedly more laudable
objectives may take advantage of the precedent and continue the
destruction of the Constitution, making those who laid down the
precedent of justifying deviations from the requirements of the
Constitution the victims of their own folly."
This same apprehension was echoed by now retired Justice Calixto O.
Zaldivar in his dissenting opinion in the Ratification cases 14 that "we will
be opening the gates for a similar disregard to the Constitution in the
future. What I mean is that if this Court now declares that a new
Constitution is now in force because the members of the citizens
assemblies had approved said new Constitution, although that approval
was not in accordance with the procedure and the requirements
prescribed in the 1935 Constitution, it can happen again in some future
time that some amendments to the Constitution may be adopted, even in
a manner contrary to the existing Constitution and the law, and then said
proposed amendments is submitted to the people in any manner and
what will matter is that a basis is claimed that there was approval by the
107
people. There will not be stability in our constitutional system, and
necessarily no stability in our government."
6. It is not legally tenable for the majority, without overruling the
controlling precedent of Tolentino (and without mustering the required
majority vote to so overrule) to accept the proposed; amendments as
valid notwithstanding their being "not in conformity with the letter, spirit
and intent of the provision of the Charter for effecting amendments" on
the reasoning that "If the President has been legitimately discharging the
legislative functions of the interim National Assembly, there is no reason
why he cannot validly discharge the functions."15
In the earlier leading case of Gonzales vs. Comelec16, this Court speaking
through now retired Chief Justice Roberto Concepcion, pointer out that
"Indeed, the power to Congress"17 or to the National Assembly.18 Where
it not for the express grant in the Transitory Provisions of the constituent
power to the interim National Assembly, the interim National Assembly
could not claim the power under the general grant of legislative power
during the transition period.
The majority's ruling in the Referendum cases19 that the Transitory
Provision in section 3(2) recognized the existence of the authority to
legislate in favor of the incumbent President during the period of martial
law manifestly cannot be stretched to encompass the constituent power
as expressly vested in the interim National Assembly in derogation of the
allotment of powers defined in the Constitution.
Paraphrasing Cooley on the non-delegation of legislative power as one of
the settled maxims of constitutional law, 20 the contituent power has
been lodged by the sovereign power of the people with the interim
National Assembly during the transition period and there it must remain
as the sole constitutional agency until the Constitution itself is changed.
As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of
Angara vs. Electoral Commissioner21, "(T)he Constitution sets forth in no
uncertain language and restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended
it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers sentiment,
and the principles of good government mere political apothegms.
Certainly, the limitations and restrictions embodied in our Constitution
are real as they should be in any living Constitution".
7. Neither is the justification of "constitutional impasses" tenable. The
sentiment of the people against the convening of the interim National
Assembly and to have no elections for "at least seven (7) years"
Concededly could not ament the Constitution insofar as the interim
National Assembly is concerned (since it admittendly came into existence
"immediately" upon the proclamation of ratification of the 1973
Constitution), much less remove the constituent power from said interim
National Assembly.
As stressed in the writer's separate opinion in the Referendum cases22,
"(W)hile it has been advanced that the decision to defer the initial
convocation of the interim National Assembly was supported by the
results of the referendum in January, 1973 when the people voted against
the convening of the interim National Assembly for at least seven years,
such sentiment cannot be given any legal force and effect in the light of
the State's admission at the hearing that such referendums are merely
consultative and cannot amend the Constitution or Provisions which call
for the 'immediate existence' and 'initial convening of the interim
National Assembly to 'give priority to measures for the orderly transition
from the presidential to the parliamentary system' and the other urgent
measures enumerated in section 5 thereof".
While the people reportedly expressed their mandate against the
convening of the interim National Assembly to dischange its legislative
tasks during the period of transition under martial law, they certainly had
no opportunity and did not express themselves against convening the
interim National Assembly to discharge the constituent power to propose
amendments likewise vested in it by the people's mandate in the
Constitution.
In point of fact, when the holding of the October 16, 1976 referendum
was first announced, the newspapers reported that among the seven
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questions proposed by the sanggunian and barangay national executive
committies for the referendum was the convening of the interim National
Assembly.23
It was further reported that the proposals which were termed tentative
"will be discussed and studied by (the President), the members of the
cabinet, and the security council" and that the barangays felt,
notwithstanding the previous referenda on the convening of the interim
National Assembly that "it is time to again ask the people's opinion of this
matter "24
8. If proposals for constitutional amendments are now deemed necessary
to be discussed and adopted for submittal to the people, strict adherence
with the mandatory requirements of the amending process as provided in
the Constitution must be complied with. This means, under the teaching
of Tolentino that the proposed amendments must validly come from the
constitutional agency vested with the constituent power to do so,
namely, the interim National Assembly, and not from the executive
power as vested in the Prime Minister (the incumbent President) with the
assistance of the Cabinet 25 from whom such power has been withheld.
It will not do to contend that these proposals represent the voice of the
people for as was aptly stated by Cooley "Me voice of the people, acting
in their sovereign capacity, can be of legal force only when expressed at
the times and under the conditions which they themselves have
prescribed and pointed out by the Constitution. ... ."26
The same argument was put forward and rejected by this Court in
Tolentino which rejected the contention that the "Convention being a
legislative body of the highest order (and directly elected by the people
to speak their voice) is sovereign, in as such, its acts impugned by
petitioner are beyond the control of Congress and the Courts" and ruled
that the constitutional article on the amending process" is nothing more
than a part of the Constitution thus ordained by the people. Hence, in
continuing said section, We must read it as if the people said, "The
Constitution may be amended, but it is our will that the amendment must
be proposed and submitted to Us for ratification only in the manner
herein provided'".27
This Court therein stressed that "This must be so, because it is plain to Us
that the framers of the Constitution took care that the process of
amending the same should not be undertaken with the same ease and
facility in changing an ordinary legislation. Constitution making is the
most valued power, second to none, of the people in a constitutional
democracy such as the one our founding fathers have chosen for this
nation, and which we of the succeeding generations generally cherish.
And because the Constitution affects the lives, fortunes, future and every
other conceivable aspect of the lives of all the people within the country
and those subject to its sovereignity, ever constitution worthy of the
people for which it is intended must not be prepared in haste without
adequate deliberation and study. It is obvious that correspondingly, any
amendment of the Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and prepared with as
much care and deliberation;" and that "written constitutions are
supposed to be designed so as to last for some time, if not for ages, or
for, at least, as long as they can be adopted to the needs and exigencies
of the people, hence, they must be insulated against precipitate and
hasty actions motivated by more or less passing political moods or
fancies. Thus, as a rule, the original constitutions carry with them
limitations and conditions, more or less stringent, made so by the people
themselves, in regard to the process of their amendment."28
9. The convening of the interim National Assembly to exercise the
constituent power to proposed amendments is the only way to fulfill the
express mandate of the Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec
29 in the setting as in of a Comelec resolution banning the use of political
taped jingles by candidates for Constitutional Convention delegates int he
special 1970 elections, "the concept of the Constitution as the
fundamental law, setting forth the criterion for the validity of any public
act whether proceeding from the highest official or the lowest
functionary, is a postulate of our system of government. That is to
amnifst fealty to the rule of law, with priority accorded to that which
occupies the topmost rung in the legal heirarchy. The three departments
of government in the discharge of the functions with which it is entrusted
have no choice but to yield obedience to its commands. Whatever limits it
109
imposes must be observed. Congress in the enactment of statutes must
ever be on guart lest the restrictions on its authority, whether
substantive or formal, be transcended. The Presidency in the execution of
the laws cannot ignore of disregard what it ordains. In its task of applying
the law to the facts as found in deciding cases, the judiciary is called upon
the maintain inviolate what is decreed by the fundamental law."
This is but to give meaning to the plan and clear mandate of section 15 of
the Transitory Provisions (which allows of no other interpretation) that
during the stage of transition the interim National Assembly alone
exercises the constituent power to propose amendments, upon special
call therefor. This is reinforced by the fact that the cited section does not
grant to the regular National Assembly of calling a constitutional
convention, thus expressing the will of the Convention (and presumably
of the people upon ratification) that if ever the need to propose
amendments arose during the limited period of transition, the interim
National Assembly alone would discharge the task and no constitutional
convention could be call for the purpose.
As to the alleged costs involved in convening the interim National
Assembly to propose amendments, among them its own abolition, (P24
million annually in salaries alone for its 400 members at P600,000.00 per
annum per member, assuming that its deliberations could last for one
year), suffice it to recall this Court's pronouncement in Tolentino (in
reflecting a similar argument on the costs of holding a plebiscite
separately from the general elections for elective officials) that "it is a
matter of public knowledge that bigger amounts have been spent or
thrown to waste for many lesser objectives. ... Surely, the amount of
seventeen million pesos or even more is not too much a price to pay for
fealty and loyalty to the Constitution ... " 30 and that "while the financial
costs of a separate plebiscite may be high, it can never be as much as the
dangers involved in disregarding clear mandate of the Constitution, no
matter how laudable the objective" and "no consideration of financial
costs shall deter Us from adherence to the requirements of the
Constitution".11
10. The imposition of martial law (and "the problems of rebellion,
subversion, secession, recession, inflation and economic crisis a crisis
greater than war") 32 cited by the majority opinion as justifying the
concentration of powers in the President, and the recognition now of his
exercising the constituent power to propose amendments to the
Fundamental Law "as agent for and in behalf of the people"33 has no
constitutional basis.
In the post-war Emergency Powers 33*, former Chief Justice Ricardo
Paras reaffirmed for the Court the principle that emergency in itself
cannot and should not create power. In our democracy the hope and
survival of the nation lie in the wisdom and unselfish patriotism of all
officials and in their faithful 'Adherence to the Constitution".
The martial law clause of the 1973 Constitution found in Article IX, section
12 , as stressed by the writer in his separate opinion in the Referendum
Cases,14 "is a verbatim reproduction of Article VII, section 10 (2) of the
1935 Constitution and provides for the imposition of martial law only 'in
case of invasion, resurrection or rebellion, or imminent danger thereof,
when the public safety requires it and hence the use of the legislative
power or more accurately 'military power' under martial rule is limited to
such necessary measures as will safeguard the Republic and suppress the
rebellion (or invasion)". 35
11. Article XVII, section 3 (2) of the 1973 Constitution which has been held
by the majority in the Referendum Cases to be the recognition or warrant
for the exercise of legislative power by the President during the period of
martial law is but a transitory provision. Together with the martial law
clause, they constitute but two provisions which are not to be considered
in isolation from the Constitution but as mere integral parts thereof
which must be harmonized consistently with the entire Constitution.
As Cooley restated the rule: "effect is to be given, if possible, to the
whole instrument, and to every section and clause. If different portions
seem to conflict, the courts must harmonize them, if practicable, and
must lean in favor of a construction which will render every word
operative, rather than one which may make some words Idle and
nugatory.
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 This rule is applicable with special force to written
constitutions, in which the people will be presumed to
have expressed themselves in careful and measured
terms, corresponding with the immense importance of
the powers delegated, leaving as little as possible to
implication. It is scarcelly conceivable that a case can arise
where a court would bye justified in declaring any portion
of a written constitution nugatory because of ambiguity.
One part may qualify another so as to restrict its
operation, or apply it otherwise than the natural
construction would require if it stood by itself; but one
part is not to be allowed to defeat another, if by any
reasonable construction the two can be made to stand
together. 36
The transcendental constituent power to propose and approve
amendments to the Constitution as well as set up the machinery and
prescribe the procedure for the ratification of his proposals has been
withheld from the President (Prime Minister) as sole repository of the
Executive Power, presumably in view of the immense powers already
vested in him by the Constitution but just as importantly, because by the
very nature of the constituent power, such amendments proposals have
to be prepared, deliberated and matured by a deliberative assembly of
representatives such as the interim National Assembly and hence may not
be antithetically entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before the
elevation of the l971 Constitutional Convention that the records of past
plebiscites show that the constitutional agency vested with the exercise
of the constituent power (Congress or the Constitutional Convention)
really determined the amendments to the Constitution since the
proposals were invariably ratified by the people 37 thus: "although the
people have the reserved power to ratify or reject the action taken by the
Convention, such power is not, in view of the circumstances attending its
exercise, as effective as one might otherwise think: that, despite the
requisite ratification by the people, the actual contents of our
fundamental law will really be determined by the Convention; that,
accordingly the people should exercise the greatest possible degree of
circumspection in the election of delegates thereto ... "38
12. Martial law concededly does not abrogate the Constitution nor
obliterate its constitutional boundaries and allocation of powers among
the Executive, Legislative and Judicial Departments. 39
It has thus been aptly observed that "Martial law is an emergency regime,
authorized by and subject to the Constitution. Its basic premise is to
preserve and to maintain the Republic against the dangers that threaten
it. Such premise imposes constraints and limitations. For the martial law
regime fulfills the constitutional purpose only if, by reason of martial law
measures, the Republic is preserved. If by reason of such measures the
Republic is so transformed that it is changed in its nature and becomes a
State other than republican, then martial law is a failure; worse, martial
law would have become the enemy of the Republic rather than its
defender and preserver."40
II. On the question of the Court's jurisdiction to pass upon the
constitutionality of the questioned presidential decrees: let it be
underscored that the Court has long set at rest the question.
The trail was blazed for the Court since the benchmark case of Angara vs.
Electoral Commission when Justice Jose P. Laurel echoed U.S. Chief
Justice Marshall's "climactic phrase" that "we must never forget that it is
a Constitution we are expounding" and declared the Court's "solemn and
sacred" constitutional obligation of judicial review and laid down the
doctrine that the Philippine Constitution as "a definition of the powers of
government" placed upon the judiciary the great burden of "determining
the nature, scope and extent of such powers" and stressed that "when
the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments . . . but only asserts the
solemn and sacred obliteration entrusted to it by the Constitution to
determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which the
instrument secures and guarantees to them".
111
At the same time, the Court likewise adhered to the constitutional tenet
that political questions, i.e. questions which are intended by the
Constitutional and relevant laws to be conclusively determined by the
"political", i.e. branches of government (namely, the Executive and the
Legislative) are outside the Court's jurisdiction. 41
Thus, in Gonzales,42 (by a unanimous Court) and in Tolentino43 (by the
required constitutional majority), the Court has since consistently ruled
that when proposing and approving amendments to the Constitution, the
members of Congress. acting as a constituent assembly or the members
of the Constitutional Convention elected directly for the purpose by not
have the final say on whether or not their acts are within or beyond
constitutional limits. Otherwise, they could brush aside and set the same
at naught, contrary to the basic tenet that outs is it government of
lawsom not of men, and to the rigid nature of our Constitution. Such
rigidity is stressed by the fact that, the Constitution expressly confers
upon the Supreme Court, the power to declare a treaty unconstitutional,
despite the eminently political character of treaty-making power".44
As amplified by former Chief Justice Concepcion in Javellana vs Executive
Secretary 45 (by a majority vote), "when the grant of power is qualified,
conditional or subject to limitations. the issue on whether or not the
prescribed qualifications or conditions have been met, or the limitations
by expected, is justiciable or non-political, the crux of the problem being
one of legality or validity of the contested act, not its wisdom Otherwise,
said qualifications, conditions and limitations-particularly those
prescribed or imposed by the Constitution would be set at naught".
The fact that the proposed amendments are to be submitted to the
people for ratification by no means makes the question political and non-
justiciable since as stressed even in Javellana the issue of validity of the
President's proclamation of ratification of the Constitution presented a
justiciable and non-political question
Stated otherwise, the question of whether the Legislative acting as a
constituent assembly or the Constitutional Convention called fol- the
purpose, in proposing amendments to the people for ratification
followed the constitutional procedure and on the amending process is
perforce a justiciable question and does not raise a political question of
police or wisdom of the proposed amendments, which if Submitted, are
reserved for the people's decision.
The substantive question presented in the case at bar of whether the
President may legally exercise the constituent power vested in the
interim National Assembly (which has not been granted to his office) and
propose constitutional amendments is preeminently a justiciable issue.
Justice Laurel in Angara had duly enjoined that "in times of social
disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated.
In cases of conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper allocation of
powers between the several departments and among the integral or
constituent units thereof".
To follow the easy way out by disclaiming jurisdiction over the issue as a
political question would be judicial abdication.
III. On the question of whether there is a sufficient and proper submittal
of the proposed amendments to the people: Prescinding from the
writer's view of the nullity of the questioned decree of lack of authority
on the President's part to excercise the constituent power, I hold that the
doctrine of fair and proper submission first enunciated by a simple
majority of by Justices in Gonzales and subsequently officially adopted by
the required constitutional two-thirds majority of the Court in is
controlling in the case at bar.
1. There cannot be said to be fair and proper submission of the proposed
amendments. As ruled by this Court in Tolentino where "the proposed
amendment in question is expressly saddled with reservations which
naturally impair, in great measures, its very essence as a proposed
constitutional amendment" and where "the way the proposal is worded,
read together with the reservations tacked to it by the Convention thru
Section 3 of the questioned resolution, it is too much of a speculation to
assume what exactly the amendment would really amount lo in the end.
All in all, as already pointed out in our discussion of movants' first ground,
112
if this kind of amendment is allowed, the Philippines will appear before
the world to be in the absurd position of being the only country with a
constitution containing a provision so ephemeral no one knows until
when it will bet actually in force", there can be no proper submission.
In Tolentino a solitary amendment reducing the voting age to 18 years
was struck down by this Court which ruled that "in order that a plebiscite
for the ratification of an amendment to the Constitution may be validly
held, it must provide the voter not only sufficient time but ample basis for
an intelligent appraisal of the nature of the amendment per se as well as
its relation to the other parts of the Constitution with which it has to form
a harmonious whole," and that there was no proper Submission wherein
the people are in the dark as to frame of reference they can base their
judgment on
2. The now Chief Justice and Mr. Justice Makasiar with two other
members 46 graphically pointed out in their joint separate opinion that
the solitary question "would seem to be uncomplicated and innocuous.
But it is one of life's verities that things which appear to be simple may
turn out not to be so simple after all".47
They further expressed "essential agreement" with Mr. Justice Conrado
V. Sanchez' separate opinion in Gonzales "on the minimum requirements
that must be met in order that there can be a proper submission to the
people of a proposed constitutional amendment" which reads thus:
... we take the view that the words 'submitted to the
people for their ratification', if construed in the light of
the nature of the Constitution a fundamental charter that
is legislation direct from the people, an expression of their
sovereign will - is that it can only be amended by the
people expressing themselves according to the procedure
ordained by the Constitution. Therefore, amendments
must be fairly laid before the people for their blessing or
spurning. The people are not to be mere rubber stamps.
They are not to vote blindly. They must be afforded ample
opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a
conclusion as the dictates of their conscience suggest,
free from the incubus of extraneous or possibly insidious
influences. We believe the word submitted' can only
mean that the government, within its maximum
capabilities, should strain every effort to inform every
citizen of the provisions to be amended, and the
proposed amendments and the meaning, nature and
effects thereof. By this, we are not to be understood as
saying that, if one citizen or 100 citizens or 1,000 citizens
cannot be reached, then there is no submission within the
meaning of the word as intended by the framers of the
Constitution. What the Constitution in effect directs is
that the government, in submitting an amendment for
ratification, should put every instrumentality or agency
within its structural framework to enlighten the people,
educate them with respect to their act of ratification or
rejection. For, as we have earlier stated, one thing is
submission and another is ratification. There must be fair
submission, intelligent. consent or rejection. If with all
these safeguards the people still approve the amendment
no matter how prejudicial it is to them, then so be it. For
the people decree their own fate.48
Justice Sanchez therein ended the passage with an apt citation that " ... "
The great men who builded the structure of our state in this respect had
the mental vision of a good Constitution voiced by Judge Cooley, who has
said 'A good Constitution should be beyond the reach of temporary
excitement and. popular caprice or passion. It is needed for stability and
steadiness; it must yield to the thought of the people; not to the whim of
the people, or the thought evolved in excitement or hot blood, but the
sober second thought, which alone, if the government is to be safe, can
be allowed efficiency. xxx xxx xxx Changes in government are to be
feared unless the benefit is certain. As Montaign says: All great mutations
shake and disorder state. Good does not necessarily succeed evil ;another
evil may succeed and a worse'." 49
Justice Sanchez thus stated the rule that has been adopted by the Court
in Tolentino that there is no proper submission "if the people are not
113
sufficiently affirmed of the amendments to be voted upon, to
conscientiously deliberate thereon, to express their will in a genuine
manner. ... .." 50
3. From the complex and complicated proposed amendments set forth in
the challenged decree and the plethora of confused and confusing
clarifications reported in the daily newspapers, it is manifest that there is
no proper submission of the proposed amendments. Nine (9) proposed
constitutional amendments were officially proposed and made known as
per Presidential Decree No. 1033 dated, September 22, 1976 for submittal
at the "referendum-plebiscite" called for this coming Saturday, October
16, 1976 wherein the 15-year and under 18-year- olds are enjoined to vote
notwithstanding their lack of qualification under Article VI of the
Constitution. Former Senator Arturo Tolentino, an acknowledged
parliamentarian of the highest order, was reported by the newspapers
last October 3 to have observed that "there is no urgency in approving
the proposed amendments to the Constitution and suggested that the
question regarding charter changes be modified instead of asking the
people to vote on hurriedly prepared amendments". He further pointed
out that "apart from lacking the parliamentary style in the body of the
Constitution, they do not indicate what particular provisions are being
repealed or amended".52
As of this writing, October 11, 1976, the paper today reported his seven-
page analysis questioning among others the proposed granting of dual
legislative powers to both the President and the Batasang Pambansa and
remarking that "This dual legislative authority can give rise to confusion
and serious constitutional questions".53
Aside from the inadequacy of the limited time given for the people's
consideration of the proposed amendments, there can be no proper
submission because the proposed amendments are not in proper form
and violate the cardinal rule of amendments of written constitutions that
the specific provisions of the Constitution being repealed or amended as
well as how the specific provisions as amended would read, should be
clearly stated in careful and measured terms. There can be no proper
submission because the vagueness and ambiguity of the proposals do not
sufficiently inform the people of the amendments for, conscientious
deliberation and intelligent consent or rejection.
4. While the press and the Solicitor General at the hearing have stated
that the principal thrust of the proposals is to substitute the interim
National Assembly with an interim Batasang Pambansa, a serious study
thereof in detail would lead to the conclusion that the whole context of
the 1973 Constitution proper would be affected and grave amendments
and modifications thereof -would apparently be made, among others, as
follows:
Under Amendment No. 1, the qualification age of members of the interim
Batasang Pambansa is reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the Legislature
is withheld from the interim Batasang Pambansa;
Under Amendment No 3, not withstanding the convening of the interim
Batasang Pambansa within 30 days from the election and selection of the
members (for which there is no fixed date) the incumbent President
apparently becomes a regular President and Prime Minister (not ad
interim);
Under Amendment No. 4, the disqualifications imposed on members of
the Cabinet in the Constitution such as the prohibition against the holding
of more than one office in the government including government-owned
or -controlled corporations would appear to be eliminated, if not
prescribed by the President;
Under Amendment No. 5, the President shall continue to exercise
legislative powers until martial law is lifted;
Under Amendment No. 6, there is a duality of legislative authority given
the President and the interim Batasang Pambansa as well as the regular
National Assembly, as pointed out by Senator Tolentino, with the
President continuing to exercise legislative powers in case of "grave
emergency or a threat or imminence thereof" (without definition of
114
terms) or when said Assemblies "fail or are unable to act adequately on
any matter for any reason that in his judgment requires immediate
action", thus radically affecting provisions of the Constitution governing
the said departments;
Under Amendment No. 7, the barangays and Sanggunians would
apparently be constitutionalized, although their functions, power and
composition may be altered by law. Referendums (which are not
authorized in the present 1973 Constitution) would also be
constitutionalized, giving rise to the possibility fraught with grave
consequences, as acknowledged at the hearing, that amendments to the
Constitution may thereafter be effected by referendum, rather than by
the rigid and strict amending process provided presently in Article XVI of
the Constitution;
Under Amendment No. 8, there is a general statement in general that the
unspecified provisions of the Constitution "not inconsistent with any of
these amendments" shall continue in full force and effect; and Under
Amendment No. 9. the incumbent President is authorized to proclaim the
ratification of the amendments by the majority of votes cast. It has
likewise been stressed by the officials concerned that the proposed
amendments come in a package and may not be voted upon separately
but on an "all or nothing" basis.
5. Whether the people can normally express their will in a genuine
manner and with due circumspection on the proposed amendments
amidst the constraints of martial law is yet another question. That a
period of free debate and discussion has to be declared of itself shows
the limitations on free debate and discussion. The facilities for free
debate and discussion over the mass media, print and otherwise are
wanting. The President himself is reported to have observed the timidity
of the media under martial law and to have directed the press to air the
views of the opposition.54
Indeed, the voice of the studentry as reflected in the editorial of the
Philippine Collegian issue of September 23, 1976 comes as a welcome and
refreshing model of conscientious deliberation, as our youth analyzes the
issues "which will affect generations yet to come" and urge the people to
mull over the pros and cons very carefully", as follows:
THE REFERENDUM ISSUES
On October 16, the people may be asked to decide on two
important national issues - the creation of a new
legislative body and the lifting of martial law.
On the first issue, it is almost sure that the interim
National Assembly will not be convened, primarily
because of its membership. Majority of the members of
the defunct Congress, who are mandated by the
Constitution to become members of the interim National
Assembly, have gained so widespread a notoriety that the
mere mention of Congress conjures the image of a den of
thieves who are out to fool the people most of the time.
Among the three branches of government, it was the
most discredited. In fact, upon the declaration of martial
law, some people were heard to mutter that a 'regime
that has finally put an end to such congressional
shenanigans could not be all that bad'.
A substitute legislative body is contemplated to help the
President in promulgating laws, and perhaps minimize the
issuance of ill-drafted decrees which necessitate constant
amendments. But care should be taken that this new
legislative body would not become a mere rubber stamp
akin to those of other totalitarian countries. It should be
given real powers, otherwise we will just have another
nebulous creation having the form but lacking the
substance. Already the President has expressed the desire
that among the powers he would like to have with regard
to the proposed legislative body is that of abolishing it in
case 'there is a need to do so'. As to what would occasion
such a need, only the President himself can determine.
This would afford the Chief Executive almost total power
115
over the legislature, for he could always offer the
members thereof a carrot and a stick.
On the matter of lifting martial law the people have
expressed ambivalent attitudes. Some of them,
remembering the turmoil that prevailed before the
declaration of martial law, have expressed the fear that its
lifting might precipitate the revival of the abuses of the
past, and provide an occasion for evil elements to
resurface with their usual tricks. Others say that it is about
time martial law was lifted since the peace and order
situation has already stabilized and the economy seems to
have been parked up.
The regime of martial law has been with us for four years
now. No doubt, martial law has initially secured some
reforms for the country The people were quite willing to
participate in the new experiment, thrilled by the novelty
of it all. After the euphoria, however, the people seem to
have gone back to the old ways, with the exception that
some of our freedoms were taken away, and an
authoritarian regime established.
We must bear in mind that martial law was envisioned
only to cope with an existing national crisis, It was not
meant to be availed of for a long period of time,
otherwise it would undermine our adherence to a
democratic form of government. In the words of the
Constitution. martial law shall only be declared in times of
'rebellion, insurrection,. invasion, or imminent danger
thereof, when the public safety requires it'. Since we no
longer suffer from internal disturbances of a gargantuan
scale, it is about time we seriously rethink the 'necessity'
of prolonging the martial law regime. If we justify the
continuance of martial by economic or other reasons
other than the foregoing constitutional grounds, then our
faith in the Constitution might be questioned. Even
without martial law,. the incumbent Chief Executive still
holds vast powers under the constitution. After all, the
gains of the New Society can be secured without
sacrificing the freedom of our people. If the converse is
true, then we might have to conclude that the Filipinos
deserve a dictatorial form of government. The
referendum results will show whether the people
themselves have adopted this sad conclusion.
The response of the people to the foregoing issues will
affect generations yet to come, so they should mull over
the pros and cons very carefully."
6. This opinion by written in the same spirit as the President's
exhortations on the first anniversary of proclamation of the 1973
Constitution that we "let the Constitution remain firm and stable" so that
it may "guide the people", and that we "remain steadfast on the rule of
law and the Constitution" as he recalled his rejection of the "exercise (of)
power that can be Identified merely with a revolutionary government"
that makes its own law, thus:
. . . Whoever he may be and whatever position he may
happen to have, whether in government or outside
government, it is absolutely necessary now that we look
solemnly and perceptively into the Constitution and try to
discover for ourselves what our role is in the successful
implementation of that Constitution. With this thought,
therefore, we can agree on one thing and that is: Let all of
us age, let all of us then pass away as a pace in the
development of our country. but let the Constitution
remain firm and stable and let institutions grow in
strength from day to day, from achievement to
achievement, and so long as that Constitution stands,
whoever may the man in power be, whatever may his
purpose be, that Constitution will guide the people and
no man, however, powerful he may be, will dare to
destroy and wreck the foundation of such a Constitution.
116
 These are the reasons why I personally, having proclaimed
martial law, having been often induced to exercise power
that can be Identified merely with a revolutionary
government, have remained steadfast or the rule of law
and the Constitution. 54*
IV. A final word on the Court's resolution of October 5, 1976 which in reply
to the Comelec query allowed by a vote of 7 to 3, judges of all courts,
after office hours, "to accept invitations to act as resource speakers
under Section 5 of Presidential Decree No. 991, as amended, as well as to
take sides in discussions and debates on the referendum-plebiscite
questions under Section 7 of the same Decree."55
The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma
had dissented from the majority resolution, with all due respect, on the
ground that the non-participation of judges in such public discussions and
debates on the referendum-plebiscite questions would preserve the
traditional non-involvement of the judiciary in public discussions of
controversial issues. This is essential for the maintenance and
enhancement of the people's faith and confidence in the judiciary. The
questions of the validity of the scheduled referendum- plebiscite and of
whether there is proper submission of the proposed amendments were
precisely subjudice by virtue of the cases at bar.
The lifting of the traditional inhibition of judges from public discussion
and debate might blemish the image and independence of the judiciary.
Aside from the fact that the fixing of a time limit for the acceptance of
their courtesy resignations to avoid an indefinite state of insecurity of
their tenure in office still spends litigants and their relatives and friends as
well as a good sector of the public would be hesitant to air views contrary
to that of the.
Judge. Justices Makasiar and Munoz Palma who share these views have
agreed that we make them of record here, since we understand that the
permission given in the resolution is nevertheless addressed to the
personal decision and conscience of each judge, and these views may he
of some guidance to them.
BARREDO, J.,: concurring:
While I am in full agreement with the majority of my brethren that the
herein petitions should be dismissed, as in fact I vote for their dismissal, I
deem it imperative that I should state separately the considerations that
have impelled me to do so.
Perhaps, it is best that I should start by trying to disabuse the minds of
those who have doubts as to whether or not I should have taken part in
the consideration and resolution of these cases. Indeed, it would not be
befitting my position in this Highest Tribunal of the land for me to leave
unmentioned the circumstances which have given cause, I presume, for
others to feel apprehensive that my participation in these proceedings
might detract from that degree of faith in the impartiality that the Court's
judgment herein should ordinarily command. In a way, it can be said, of
course, that I am the one most responsible for such a rather
problematical situation, and it is precisely for this reason that I have
decided to begin this opinion with a discussion of why I have not inhibited
myself, trusting most confidently that what I have to say will be taken in
the same spirit of good faith, sincerity and purity of purpose in which I am
resolved to offer the same.
Plain honesty dictates that I should make of record here the pertinent
contents of the official report of the Executive Committee of the
Katipunan ng mga Sanggunian submitted to the Katipunan itself about
the proceedings held on August 14, 1976. It is stated in that public
document that:
THE ISSUE WITH REGARDS To THE CONVENING OF A
LEGISLATIVE body came out when the President express
his desire to share his powers with other people.
Aware of this, a five-man Committee members of the Philippine
Constitution Association (PHILCONSA) headed by Supreme Court Justice
Antonio Barredo proposed on July 28, the establishment of 'Sangguniang
Pambansa' or 'Batasang Pambansa' which would help the President in the
performance of his legislative functions. The proposed new body will take
the place of the interim National Assembly which is considered not
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practical to convene at this time considering the constitution of its
membership.
Upon learning the proposal of Justice Barredo, the country's 42,000
barangay assemblies on August 1 suggested that the people be consulted
on a proposal to create a new legislative body to replace the interim
assembly provided for by the Constitution. The suggestion of the
barangay units was made through their national association, Pambansang
Katipunan ng mga Barangay headed by Mrs. Nora Z. Patines. She said that
the people have shown in at least six instances including in the two past
referenda that they are against the convening of the interim National
Assembly. She also said that since the people had ruled out the calling of
such assembly and that they have once proposed that the President
create instead the Sangguniang Pambansa or a legislative advisory body,
then the proposal to create a new legislative must necessarily be referred
to the people.
The federation of Kabataang Barangay, also numbering 42,000 units like
their elder counterparts in the Katipunan ng mga Barangay also asserted
their own right to be heard on whatever plans are afoot to convene a
new legislative body.
On August 6, a meeting of the national directorate of PKB was held to
discuss matters pertaining to the stand of the PKB with regards to the
convening of a new legislative body. The stand of the PKB is to create a
legislative advisory council in place of the old assembly. Two days after,
August 8, the Kabataang Barangay held a symposium and made a stand
which is the creation of a body with full legislative powers.
A nationwide clamor for the holding of meeting in their respective
localities to discuss more intellegently the proposal to create a new
legislative body was made by various urban and rural Sangguniang
Bayans.
Numerous requests made by some members coming from 75 provincial
and 61 city SB assemblies, were forwarded to the Department of Local
Government and Community Development (DLGCD).
On August 7, Local Government Secretary, Jose A. Rono granted the
request by convening the 91 member National Executive Committee of
the Pambansang Katipunan ng mga Sanggunian on August 14 which was
held at Session Hall, Quezon City. Invited also to participate were 13
Regional Federation Presidents each coming from the PKB and the PKKB
Actually, the extent of my active participation in the events and
deliberations that have culminated in the holding of the proposed
referendum- plebiscite on October 16, 1976, which petitioners are here
seeking to enjoin, has been more substantial and meaningful than the
above report imparts. Most importantly, aside from being probably the
first person to publicly articulate the need for the creation of an interim
legislative body to take the place of. the interim National Assembly
provided for in the Transitory Provisions of the Constitution, as suggested
in the above report, I might say that I was the one most vehement and
persistent in publicly advocating and urging the authorities concerned to
directly submit to the people in a plebiscite whatever amendments of the
Constitution might be considered necessary for the establishment of such
substitute interim legislature. In the aforementioned session of the
Executive Committee of the Katipunan, I discourse on the indispensability
of a new interim legislative body as the initial step towards the early
lifting of martial law and on the fundamental considerations why in our
present situation a constitutional convention would be superfluous in
amending the Constitution.
Moreover, it is a matter of public knowledge that in a speech I delivered
at the Coral Ballroom of the Hilton Hotel in the evening of August 17,
1976, I denounced in no uncertain terms the plan to call a constitutional
convention. I reiterated the same views on September 7, 1976 at the
initial conference called by the Comelec in the course of the information
and educational campaign it was enjoined to conduct on the subject. And
looking back at the subsequent developments up to September 22, 1976,
when the Batasang Bayan approved and the President signed the now
impugned Presidential Decree No. 1033, it is but human for me to want to
believe that to a certain extent my strong criticisms and resolute stand
against any other alternative procedure of amending the Constitution for
the purpose intended had borne fruit.
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I must hasten to add at this point, however, that in a larger sense, the
initiative for all I have done, was not altogether mine alone. The truth of
the matter is that throughout the four years of this martial law
government, it has always been my faith, as a result of casual and
occasional exchanges of thought with President Marcos, that when the
appropriate time does come, the President would somehow make it
known that in his judgment, the situation has already so improved as to
permit the implementation, if gradual, of the constitutionally envisioned
evolution of our government from its present state to a parliamentary
one. Naturally, this would inevitably involve the establishment of a
legislative body to replace the abortive interim National Assembly. I have
kept tract of all the public and private pronouncements of the President,
and it was the result of my reading thereof that furnished the immediate
basis for my virtually precipitating, in one way or another, the
materialization of the forthcoming referendum-plebiscite. In other words,
in the final analysis, it was the President's own attitude on the matter
that made it opportune for me to articulate my own feelings and Ideas as
to how the nation can move meaningfully towards normalization and to
publicly raise the issues that have been ventilated by the parties in the
instant cases.
I would not be human, if I did not consider myself privileged in having
been afforded by Divine Providence the opportunity to contribute a
modest share in the formulation of the steps that should lead ultimately
to the lifting of martial law in our country. Indeed, I am certain every true
Filipino is anxiously looking forward to that eventuality. And if for having
voiced the sentiments of our people, where others would have preferred
to be comfortably silent, and if for having made public what every Filipino
must have been feeling in his heart all these years, I should be singled out
as entertaining such preconceived opinions regarding the issues before
the Court in the cases at bar as to preclude me from taking part in their
disposition, I can only say that I do not believe there is any other Filipino
in and out of the Court today who is not equally situated as I am .
The matters that concern the Court in the instant petitions do not involve
merely the individual interests of any single person or group of persons.
Besides, the stakes in these cases affect everyone commonly, not
individually. The current of history that has passed through the whole
country in the wake of martial law has swept all of us, sparing none, and
the problem of national survival and of restoring democratic institutions
and Ideals is seeking solution in the minds of all of us. That I have
preferred to discuss publicly my own thoughts on the matter cannot
mean that my colleagues in the Court have been indifferent and apathetic
about it, for they too are Filipinos. Articulated or not, all of us must have
our own preconceived Ideas and notions in respect to the situation that
confronts the country. To be sure, our votes and opinions in the- major
political cases in the recent past should more or less indicate our
respective basic positions relevant to the issues now before Us. Certainly,
contending counsels cannot be entirely in the dark in this regard. I feel
that it must have been precisely because of such awareness that despite
my known public participation in the discussion of the questions herein
involved, none of the parties have sought my inhibition or
disqualification.
Actually, although it may be difficult for others to believe it, I have never
allowed my preconceptions and personal inclinations to affect the
objectivity needed in the resolution of any judicial question before the
Court. I feel I have always been able to appreciate, fully consider and duly
weigh arguments and points raised by all counsels, even when they
conflict with my previous views. I am never beyond being convinced by
good and substantial ratiocination. Nothing has delighted me more than
to discover that somebody else has thought of more weighty arguments
refuting my own, regardless of what or whose interests are at stake. I
would not have accepted my position in the Court had I felt I would not
be able to be above my personal prejudices. To my mind, it is not that a
judge has preconceptions that counts, it is his capacity and readiness to
absorb contrary views that are indispensable for justice to prevail. That
suspicions of prejudgment may likely arise is unavoidable; but I have
always maintained that whatever improper factors might influence a
judge will unavoidably always appear on the face of the decision. In any
event, is there better guarantee of justice when the preconceptions of a
judge are concealed?
Withal, in point of law, I belong to the school of thought that regards
members of the Supreme Court as not covered by the general rules
relative to disqualification and inhibition of judges in cases before them. If
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I have in practice actually refrained from participating in some cases, it
has not been because of any legal ground founded on said rules, but for
purely personal reasons, specially because, anyway, my vote would not
have altered the results therein.
It is my considered opinion that unlike in the cases of judges in the lower
courts, the Constitution does not envisage compulsory disqualification or
inhibition in any case by any member of the Supreme Court. The Charter
establishes a Supreme Court "composed of a Chief Justice and fourteen
Associate Justices", with the particular qualifications therein set forth and
to be appointed in the manner therein provided. Nowhere in the
Constitution is there any indication that the legislature may designate by
law instances wherein any of the justices should not or may not take part
in the resolution of any case, much less who should take his place.
Members of the Supreme Court are definite constitutional officers; it is
not within the power of the lawmaking body to replace them even
temporarily for any reason. To put it the other way, nobody who has not
been duly appointed as a member of the Supreme Court can sit in it at
any time or for any reason. The Judicial power is vested in the Supreme
Court composed as the Constitution ordains - that power cannot be
exercised by a Supreme Court constituted otherwise. And so, when as in
the instant where, if any of the member of Court is to abstain from taking
part, there would be no quorum - and no court to render the decision - it
is the includible duty of all the incumbent justices to participate in the
proceedings and to cast their votes, considering that for the reasons
stated above, the provisions of Section 9 of the Judiciary Act do not
appear to conform with the concept of the office of Justice of the
Supreme Court contemplated in the Constitution.
The very nature of the office of Justice of the Supreme Court as the
tribunal of last resort and bulwark of the rights and liberties of all the
people demands that only one of dependable and trustworthy probity
should occupy the same. Absolute integrity, mental and otherwise, must
be by everyone who is appointed thereto. The moral character of every
member of the Court must be assumed to be such that in no case
whatsoever. regardless of the issues and the parties involved, may it be
feared that anyone's life, liberty or property, much less the national
interests, would ever be in jeopardy of being unjustly and improperly
subjected to any kind of judicial sanction. In sum, every Justice of the
Supreme Court is expected to be capable of rising above himself in every
case and of having full control of his emotions and prejudices, such that
with the legal training and experience he must of necessity be adequately
equipped with, it would be indubitable that his judgment cannot be but
objectively impartial, Indeed, even the appointing power, to whom the
Justices owe their positions, should never hope to be unduly favored by
any action of the Supreme Court. All appointments to the Court are based
on these considerations, hence the ordinary rules on inhibition and
disqualification do not have to be applied to its members.
With the preliminary matter of my individual circumstances out of the
way, I shall now address myself to the grave issues submitted for Our
resolution.
-I-
In regard to the first issue as to whether the questions posed in the
petitions herein are political or justiciable, suffice it for me to reiterate the
fundamental position I took in the Martial Law cases,1 thus
As We enter the extremely delicate task of resolving the
grave issues thus thrust upon Us. We are immediately
encountered by absolute verities to guide Us all the way.
The first and most important of them is that the
Constitution (Unless expressly stated otherwise, all
references to the Constitution in this discussion are to
both the 1935 and 1973 charters, since, after all, the
pertinent provisions are practically Identical in both is the
supreme law of the land. This means among other things
that all the powers of the government and of all its
officials from the President down to the lowest emanate
from it. None of them may exercise any power unless it
can be traced thereto either textually or by natural and
logical implication. "The second is that it is settled that
the Judiciary provisions of the Constitution point to the
Supreme Court as the ultimate arbiter of all conflicts as to
what the Constitution or any part thereof means. While
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the other Departments may adopt their own construction
thereof, when such construction is challenged by the
proper party in an appropriate case wherein a decision
would be impossible without determining the correct
construction, the Supreme Court's word on the matter
controls.
xxx xxx xxx
xxx xxx xxx
The fifth is that in the same manner that the Executive
power conferred upon the Executive by the Constitution
is complete, total and unlimited, so also, the judicial
power vested in the Supreme Court and the inferior
courts, is the very whole of that power, without any
limitation or qualification.
xxx xxx xxx
xxx xxx xxx
From these incontrovertible postulates, it results, first of
all, that the main question before Us is not in reality one
of jurisdiction, for there can be no conceivable
controversy, especially one involving a conflict as to the
correct construction of the Constitution, that is not
contemplated to be within the judicial authority of the
courts to hear and decide. The judicial power of the courts
being unlimited and unqualified, it extends over all
situations that call for the as certainment and protection
of the rights of any party allegedly violated, even when
the alleged violator is the highest official of the land or
the government itself. It is, therefore, evidence that the
Court's jurisdiction to take cognizance of and to decide
the instant petitions on their merits is beyond challenge.
In this connection, however, it must be borne in mind that
in the form of government envisaged by the framers of
the Constitution and adopted by our people, the Court's
indisputable and plenary authority to decide does not
necessarily impose upon it the duty to interpose its fiat as
the only means of settling the conflicting claims of the
parties before it. It is ingrained in the distribution of
powers in the fundamental law that hand in hand with the
vesting of the judicial power upon the Court, the
Constitution has coevally conferred upon it the discretion
to determine, in consideration of the constitutional
prerogatives granted to the other Departments, when to
refrain from imposing judicial solutions and instead defer
to the judgment of the latter. It is in the very nature of
republican governments that certain matters are left in
the residual power of the people themselves to resolve,
either directly at the polls or thru their elected
representatives in the political Departments of the
government. And these reserved matters are easily
distinguishable by their very nature, when one studiously
considers the basic functions and responsibilities
entrusted by the charter to each of the great
Departments of the government. To cite an obvious
example, the protection, defense and preservation of the
state against internal or external aggression threatening
its very existence is far from being within the ambit of
judicial responsibility. The distinct role then of the
Supreme Court of being the final arbiter in the
determination of constitutional controversies does not
have to be asserted in such contemplated situations,
thereby to give way to the ultimate prerogative of the
people articulated thru suffrage or thru the acts of their
political representatives they have elected for the
purpose.
Indeed, these fundamental considerations are the ones that lie at the
base of what is known in American constitutional law as the political
question doctrine, which in that jurisdiction is unquestionably deemed to
121
be part and parcel of the rule of law, exactly like its apparently more
attractive or popular opposite, judicial activism, which is the fullest
exertion of judicial power, upon the theory that unless the courts
intervene injustice might prevail. It has been invoked and applied by this
Court in varied forms and mode of projection in several momentous
instances in the past, (Barcelona vs. Baker, 5 Phil. 87; Severino vs.
Governor-General, 16 Phil. 366; Abueva vs. Wood, 45 Phil. 612; Alejandrino
vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag vs. Lopez
Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil. 654; Montenegro vs.
Castaneda, 91 Phil. 882, Santos vs. Yatco, 55 O.G. 8641 [Minute Resolution
of Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.) and it is the main
support of the stand of the Solicitor General on the issue of jurisdiction in
the cases at bar. It is also referred to as the doctrine of judicial self-
restraint or abstention. But as the nomenclatures themselves imply,
activism and self- restraint are both subjective attitudes, not inherent
imperatives. The choice of alternatives in any particular eventuality is
naturally dictated by what in the Court's considered opinion is what the
Constitution envisions should be by in order to accomplish the objectives
of government and of nationhood. And perhaps it may be added here to
avoid confusion of concepts, that We are not losing sight of the
traditional approach based on the doctrine of separation of powers. In
truth, We perceive that even under such mode of rationalization, the
existence of power is secondary, respect for the acts of a co-ordinate, co-
equal and independent Department being the general rule, particularly
when the issue is not encroachment of delimited areas of functions but
alleged abuse of a Department's own basic prerogatives. (59 SCRA, pp.
379-383.)
Applying the foregoing considerations to the cases at bar, I hold that the
Court has jurisdiction to pass on the merits of the various claims of
petitioners. At the same time, however, I maintain that the basic nature
of the issues herein raised requires that the Court should exercise its
constitutionally endowed prerogative to refrain from exerting its judicial
authority in the premises.
Stripped of incidental aspects, the constitutional problem that confronts
Us stems from the absence of any clear and definite express provision in
the Charter applicable to the factual milieu herein involved. The primary
issue is, to whom, under the circumstances, does the authority to
propose amendments to the Constitution property belong? To say, in the
light of Section 15 of Article XVII of the Charter, that that faculty lies in the
interim National Assembly is to beg the main question. Indeed, there
could be no occasion for doubt or debate, if it could ' only be assumed
that the interim National Assembly envisaged in Sections 1 and 2 of the
same Article XVII may be convoked. But precisely, the fundamental issue
We are called upon to decide is whether or not it is still constitutionally
possible to convene that body. And relative to that question, the inquiry
centers on whether or not the political developments since the
ratification of the Constitution indicate that the people have in effect
enjoined the convening of the interim National Assembly altogether. On
this score, it is my assessment that the results of the referenda of January
10-15, 1973, July 27-28, 1973 and February 27, 1975 clearly show that the
great majority of our people, for reasons plainly obvious to anyone who
would consider the composition of that Assembly, what with its more
than 400 members automatically voted into it by the Constitutional
Convention together with its own members, are against its being
convoked at all.
Whether or not such a manifest determination of the sentiments of the
people should be given effect without a formal amendment of the
Constitution is something that constitutional scholars may endlessly
debate on. What cannot be disputed, however, is that the government
and the nation have acquiesced to, it and have actually operated on the
basis thereof. Proclamation 1103 which, on the predicate that the
overwhelming majority of the people desire that the interim Assembly be
not convened, has ordained the suspension of its convocation, has not
been assailed either judicially or otherwise since the date of its
promulgation on January 17, 1973.
In these premises, it is consequently the task of the Court to determine
what, under these circumstances, is the constitutional relevance of the
interim National Assembly to any proposal to amend the Constitution at
this time. It is my considered opinion that in resolving that question, the
Court must have to grapple with the problem of what to do with the will
of the people, which although manifested in a manner not explicitly
provided for in the Constitution, was nevertheless official, and reliable,
122
and what is more important clear and unmistakable, despite the known
existence of well-meaning, if insufficiently substantial dissent. Such being
the situation, I hold that it is not proper for the Court to interpose its
judicial authority against the evident decision of the people and should
leave it to the political department of the government to devise the ways
and means of resolving the resulting problem of how to amend the
Constitution, so long as in choosing the same, the ultimate constituent
power is left to be exercised by the people themselves in a well- ordered
plebiscite as required by the fundamental law.
-2-
Assuming We have to inquire into the merits of the issue relative to the
constitutional authority behind the projected amendment of the Charter
in the manner provided in Presidential Decree 1033, I hold that in the
peculiar situation in which the government is today, it is not incompatible
with the Constitution for the President to propose the subject
amendments for ratification by the people in a formal plebiscite under
the supervision of the Commission on Elections. On the contrary, in the
absence of any express prohibition in the letter of the Charter, the
Presidential Decree in question is entirely consistent with the spirit and
the principles underlying the Constitution. The correctness of this
conclusion should become even more patent, when one considers the
political developments that the people have brought about since the
ratification of the Constitution on January 17,1973.
I consider it apropos at this juncture to repeat my own words in a speech
I delivered on the occasion of the celebration of Law Day on September
18, 1975 before the members of the Philippine Constitution Association
and their guests:
To fully comprehend the constitutional situation in the
Philippines today, one has to bear in mind that, as I have
mentioned earlier, the martial law proclaimed under the
1935 Constitution overtook the drafting of the new
charter by the Constitutional Convention of 1971. It was
inevitable, therefore, that the delegates had to take into
account not only the developments under it but, most of
all, its declared objectives and what the President, as its
administrator, was doing to achieve them. In this
connection, it is worthy of mention that an attempt to
adjourn the convention was roundly voted down to
signify the determination of the delegates to finish
earliest their work, thereby to accomplish the mission
entrusted to them by the people to introduce meaningful
reforms in our government and society. Indeed, the
constituent labors gained rapid tempo, but in the process,
the delegates were to realize that the reforms they were
formulating could be best implemented if the martial law
powers of the President were to be allowed to subsist
even after the ratification of the Constitution they were
approving. This denouement was unusual. Ordinarily, a
constitution born out of a crisis is supposed to provide all
the needed cures and can, therefore, be immediately in
full force and effect after ratification. Not so, with our
1973 Constitution, Yes, according to the Supreme Court,
'there is no more judicial obstacle to the new Constitution
being considered in force and effect', but in truth, it is not
yet so in full. Let me explain.
To begin with, in analyzing the new Constitution, we must be careful to
distinguish between the body or main part thereof and its transitory
provisions. It is imperative to do so because the transitory provisions of
our Constitution are extraordinary in the sense that obviously they have
been designed to provide not only for the transition of our government
from the presidential form under the past charter to a parliamentary one
as envisaged in the new fundamental law, but also to institutionalize,
according to the President, the reforms introduced thru the exercise of
his martial law powers. Stated differently, the transitory provisions, as it
has turned out, has in effect established a transition government, not, I
am sure, perceived by many. It is a government that is neither
presidential nor parliamentary. It is headed, of course, by President
Marcos who not on retains all his powers under the 1935 Constitution but
enjoys as well those of the President and the Prime Minister under the
new Constitution. Most importantly, he can and does legislate alone. But
to be more accurate, I should say that he legislates alone in spite of the
123
existence of the interim National Assembly unequivocally ordained by the
Constitution, for the simple reason that he has suspended the convening
of said assembly by issuing Proclamation No. 1103 purportedly 'in
deference to the sovereign will of the Filipino people' expressed in the
January 10-15, 1973 referendum.
Thus, we have here the unique case of a qualified ratification. The whole
Constitution was submitted for approval or disapproval of the people,
and after the votes were counted and the affirmative majority known, we
were told that the resulting ratification was subject to the condition that
the interim National Assembly evidently established in the Constitution as
the distinctive and indispensable element of a parliamentary form of
government should nevertheless be not convened and that no elections
should be held for about seven years, with the consequence that we have
now a parliamentary government without a parliament and a republic
without any regular election of its officials. And as you can see, this
phenomenon came into being not by virtue of the Constitution but of the
direct mandate of the sovereign people expressed in a referendum. In
other words, in an unprecedented extra-constitutional way, we have
established, wittingly or unwittingly, a direct democracy through the
Citizens Assemblies created by Presidential Decree No. 86, which later on
have been transformed into barangays, a system of government
proclaimed by the President as 'a real achievement in participatory
democracy.' What I am trying to say, my friends, is that as I perceive it,
what is now known as constitutional authoritarianism means, in the final
analysis, that the fundamental source of authority of our existing
government may not be necessarily found within the four corners of the
Constitution but rather in the results of periodic referendums conducted
by the Commission on Elections in a manner well known to all of us This,
as I see it, is perhaps what the President means by saying that under the
new Constitution he has extra-ordinary powers independently of martial
law - powers sanctioned directly by the people which may not even be
read in the language of the Constitution. in brief, when we talk of the rule
of law nowadays, our frame of reference should not necessarily be the
Constitution but the outcome of referendums called from time to time by
the President. The sooner we imbibe this vital concept the more
intelligent will our perspective be in giving our support and loyalty to the
existing government. What is more, the clearer will it be that except for
the fact that all the powers of government are being exercised by the
President, we - do not in reality have a dictatorship but an experimental
type of direct democracy."
In the foregoing disquisition, I purposely made no mention of the
referendum of February 27, 1975. It is important to note, relative to the
main issue now before Us, that it was originally planned to ask the people
in that referendum whether or not they would like the interim National
Assembly to convene, but the Comelec to whom the task of preparing
the questions was assigned was prevailed upon not to include any -such
question anymore, precisely because it was the prevalent view even
among the delegates to the Convention as well as the members of the
old Congress concerned that that matter had already been finally
resolved in the previous referenda of January and July 1973 in the sense
that. the Assembly should not be convened comparable to res adjudicata.
It is my position that as a result of the political developments since
January 17, 1973 the transitory provisions envisioning the convening of
the interim National Assembly have been rendered legally inoperative.
There is no doubt in my mind that for the President to convoke the
interim National Assembly as such would be to disregard the will of the
people - something no head of a democratic republican state like ours
should do. And I find it simply logical that the reasons that motivated the
people to enjoin the convening of the Assembly - the unusually large and
unmanageable number of its members and the controversial morality of
its automatic composition consisting of all the incumbent elective
national executive and legislative officials under the Old Constitution who
would agree to join it and the delegates themselves to the Convention
who had voted in favor of the Transitory Provisions - apply not only to the
Assembly as an ordinary legislature but perhaps more to its being a
constituent body. And to be more realistic, it is but natural to conclude
that since the people are against politicians in the old order having
anything to do with the formulation of national policies, there must be
more reasons for them to frown on said politicians taking part in
amendment of the fundamental law, specially because the particular
amendment herein involved calls for the abolition of the interim National
Assembly to which they belong and its substitution by the Batasang
Pambansa.
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It is argued that in law, the qualified or conditional ratification of a
constitution is not contemplated. I disagree. It is inconsistent with the
plenary power of the people to give or withhold their assent to a
proposed Constitution to maintain that they can do so only wholly. I
cannot imagine any sound principle that can be invoked to support the
theory that the proposing authority can limit the power of ratification of
the people. As long as there are reliable means by which only partial
approval can be manifested, no cogent reason exists why the sovereign
people may not do so. True it is that no proposed Constitution can be
perfect and it may therefore be taken with the good and the bad in it, but
when there are feasible ways by which it can be determined which
portions of it, the people disapprove. it would be stretching technicality
beyond its purported office to render the final authority - the people
impotent to act according to what they deem best suitable to their
interests.
In any event, I feel it would be of no consequence to debate at length
regarding the legal feasibility of qualified ratification. Proclamation 1103
categorically declares that:
WHEREAS, fourteen million nine hundred seventy six
thousand five hundred sixty-one (14,976.561) members of
all the Barangays voted for the adoption of the proposed
Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted
for its rejection; but a majority of those who approved the
new Constitution conditioned their votes on the demand
that the interim National Assembly provided in its
Transitory Provisions should not be convened.
and in consequence, the President has acted accordingly by not
convening the Assembly. The above factual premises of Proclamation
1103 is not disputed by petitioners. Actually, it is binding on the Court, the
same being a political act of a coordinate department of the government
not properly assailed as arbitrary or whimsical. At this point, it must be
emphasized in relation to the contention that a referendum is only
consultative, that Proclamation 1103, taken together with Proclamation
1102 which proclaimed the ratification of the Constitution, must be
accorded the same legal significance as the latter proclamation, as indeed
it is part and parcel if the Act of ratification of the Constitution, hence not
only persuasive but mandatory. In the face of the incontrovertible fact
that the sovereign people have voted against the convening of the
interim National Assembly, and faced with the problem of amending the
Constitution in order precisely to implement the people's rejection of that
Assembly, the problem of constitutional dimension that confronts Us, is
how can any such amendment be proposed for ratification by the people?
To start with, it may not be supposed that just because the office or body
designed by the constitutional convention to perform the constituent
function of formulating proposed amendments has been rendered
inoperative by the people themselves, the people have thereby
foreclosed the possibility of amending the Constitution no matter how
desirable or necessary this might be. In this connection, I submit that by
the very nature of the office of the Presidency in the prevailing scheme of
government we have - it being the only political department of the
government in existence - it is consistent with basic principles of
constitutionalism to acknowledge the President's authority to perform
the constituent function, there being no other entity or body lodged with
the prerogative to exercise such function.
There is another consideration that leads to the same conclusion. It is
conceded by petitioners that with the non-convening of the interim
Assembly, the legislative authority has perforce fallen into the hands of
the President, if only to avoid a complete paralysis of law-making and
resulting anarchy and chaos. It is likewise conceded that the provisions of
Section 3 (2) of Article XVII invest the President with legislative power for
the duration of the transition period. From these premises, it is safe to
conclude that in effect the President has been substituted by the people
themselves in place of the interim Assembly. Such being the case, the
President should be deemed as having been granted also the cognate
prerogative of proposing amendments to the Constitution. In other
words, the force of necessity and the cognate nature of the act justify
that the department exercising the legislative faculty be the one to
likewise perform the constituent function that was attached to the body
rendered impotent by the people's mandate. Incidentally, I reject most
vehemently the proposition that the President may propose amendments
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to the Constitution in the exercise of his martial law powers. Under any
standards, such a suggestion cannot be reconciled with the Ideal that a
Constitution is the free act of the people.
It was suggested during the oral, argument that instead of extending his
legislative powers by proposing the amendment to create a new
legislative body, the President should issue a decree providing for the
necessary apportionment of the seats in the Regular National Assembly
and call for an election of the members thereof and thus effect the
immediate normalization of the parliamentary government envisaged in
the Constitution. While indeed procedurally feasible, the suggestion
overlooks the imperative need recognized by the constitutional
convention as may be inferred from the obvious purpose of the transitory
provisions, for a period of preparation and acquaintance by all concerned
with the unfamiliar distinctive features and practices of the parliamentary
system. Accustomed as we are to the presidential system, the Convention
has seen to it that there should be an interim parliament under the
present leadership, which will take the corresponding measures to
effectuate the efficient and smooth transition from the present system to
the new one. I do not believe this pattern set by the convention should
be abandoned.
The alternative of calling a constitutional convention has also been
mentioned. But, in the first place, when it is considered that whereas,
under Section 1 (1) and (2) of Article XVI, the regular National Assembly
may call a Constitutional Convention or submit such a call for approval of
the people, Section 15 of Article XVII, in reference to interim National
Assembly, does not grant said body the prerogative of calling a
convention, one can readily appreciate that the spirit of the Constitution
does not countenance or favor the calling of a convention during the
transition, if only because such a procedure would be time consuming,
cumbersome and expensive. And when it is further noted that the
requirement as to the number of votes needed for a proposal is only a
majority, whereas it is three-fourths in respect to regular Assembly, and,
relating this point to the provision of Section 2 of Article XVI to the effect
that all ratification plebiscites must be held "not later than three months
after the approval" of the proposed amendment by the proposing
authority, the adoption of the most simple manner of amending the
charter, as that provided for in the assailed Presidential Decree 1033
suggests itself as the one most in accord with the intent of the
fundamental law.
There is nothing strange in adopting steps not directly based on the letter
of the Constitution for the purpose of amending or changing the same.
To cite but one important precedent, as explained by Mr. Justice
Makasiar in his concurring opinion in Javellana 2, the present Constitution
of the United States was neither proposed nor ratified in the manner
ordained by the original charter of that country, the Articles of
Confederation and Perpetual Union.
In brief. if the convening and operation of the interim National Assembly
has been effectuated through a referendum-plebiscite in January, 1973,
and ratified expressly and impliedly in two subsequent referenda, those
of July, 1973 and February, 1975, why may not a duly held plebiscite
suffice for the purpose of creating a substitute for that Assembly? It
should be borne in mind that after all, as indicated in the whereas of the
impugned Presidential Decree, actually, the proposed amendments were
initiated by the barangays and sanggunian members. In other words, in
submitting the amendments for ratification, the President is merely
acting as the conduit thru whom a substantial portion of the people,
represented in the Katipunan ng Mga Sanggunian, Barangay at
Kabataang Barangay, seek the approval of the people as a whole of the
amendments in question. If all these mean that the sovereign people
have arrogated unto themselves the functions relative to the amendment
to the Constitution, I would regard myself as totally devoid of legal
standing to question it, having in mind that the most fundamental tenet
on which our whole political structure rests is that "sovereignty resides in
the people and all government authority emanates from them."
In the light of the foregoing considerations, I hold that Presidential
Decree No. 1033 does not infringe the Constitution, if only because the
specific provision it is supposed to infringe does not exist in legal
contemplation since it was coevally made inoperative when the people
ratified the Constitution on January 17, 1973. I am fully convinced that
there is nothing in the procedure of amendment contained in said decree
that is inconsistent with the fundamental principles of constitutionalism.
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On the contrary, I find that the Decree, in issue conforms admirably with
the underlying tenet of our government - the sovereignty and plenary
power of the people.
On the issue of whether or not October 16, 1976 is too proximate to
enable the people to sufficiently comprehend the issues and intelligently
vote in the referendum and plebiscite set by Presidential Decree 1033, all I
can say is that while perhaps my other colleagues are right in holding that
the period given to the people is adequate, I would leave it to the
President to consider whether or not it would be wiser to extend the
same. Just to avoid adverse comments later I wish the President orders a
postponement. But whether such postponement is ordered or not, date
of the referendum- plebiscite anywhere from October 16, 1976 to any
other later date, would be of no vital import.
In conclusion, I vote to dismiss all the three petitions before Us.
MAKASIAR, J., concurring and dissenting:
Since the validity or effectivity of the proposed amendments is to be
decided ultimately by the people in their sovereign capacity, the question
is political as the term is defined in Tanada, et al. vs. Cuenco, et al. (103
Phil. 1051), which is a bar to any judicial inquiry, for the reasons stated in
Our opinion in Javellana, et al. vs. Executive Secretary, et al. (L-36142);
Tan, et al. vs. Executive Secretary, et al. (L,36164); Roxas, et al. vs
Executive Secretary, et al. (L-36165); Monteclaro, etc., et al. vs' Executive
Secretary, et al. (@36236); and Ditag et al. vs. Executive Secretary, et al.
(L-W283, March 31, 1973, 50 SCRA 30, 204-283). The procedure for
amendment is not important Ratification by the people is all that is
indispensable to validate an amendment. Once ratified, the method of
making the proposal and the period for submission become relevant.
The contrary view negates the very essence of a republican democracy -
that the people are sovereign - and renders meaningless the emphatic
declaration in the very first provision of Article II of the 1973 Constitution
that the Philippines is a republican state, sovereignty resides in the
people and all government authority emanates from them. It is axiomatic
that sovereignty is illimitable The representatives cannot dictate to the
sovereign people. They may guide them; but they cannot supplant their
judgment, Such an opposite view likewise distrusts the wisdom of the
people as much as it despises their intelligence. It evinces a
presumptuous pretension to intellectual superiority. There are thousands
upon thousands among the citizenry, who are not in the public service,
who are more learned and better skilled than many of their elected
representatives.
Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004,
Jan. 31, 1975, 62 SCRA 275, 298-302) that the President as enforcer or
administrator of martial rule during the period of martial law can
legislate; and that he has the discretion as to when the convene the
interim National Assembly depending on prevailing conditions of peace
and order. In view of the fact that the interim National Assembly has not
been convoked in obedience to the desire of the people clearly expressed
in the 1973 referenda, the President therefore remains the lone law-
making authority while martial law subsists. Consequently, he can also
exercise the power of the interim National Assembly to propose
amendments to the New Constitution (Sec. 15,,Art. XVII If, as conceded by
petitioner Vicente Guzman (L-44684), former delegate to the 1971
Constitutional Convention which drafted the 1973 Constitution. the
President, during the period of martial law, can call a constitutional
convention for the purpose, admittedly a constituent power, it stands to
reason that the President can likewise legally propose amendments to
the fundamental law.
ANTONIO, J., concurring:
I
At the threshold, it is necessary to clarify what is a "political question". It
must be noted that this device has been utilized by the judiciary "to avoid
determining questions it is ill equipped to determine or that could be
settled in any event only with the effective support of the political
branches."1 According to Weston, judges, whether "personal
representatives of a truly sovereign king, or taking their seats as the
creatures of a largely popular sovereignty speaking through a written
constitution, derive their power by a delegation, which clearly or
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obscurely as the case may be, deliminates and delimits their delegated
jurisdiction.* * * Judicial questions * * * are those which the sovereign
has set to be decided in the courts. Political questions, similarly, are those
which the sovereign has entrusted to the so-called political departments
of government or has reserved to be settled by its own extra-government
or has reserved to be settled by its own extra-governmental action."2
Reflecting a similar concept, this Court has defined a "political question"
as a "matter which is to be exercised by the people in their primary
political capacity or that has been specifically delegated to some other
department or particular officer of the government, with discretionary
power to act."3 In other words, it refers to those questions which, under
the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government.4
In determining whether an issue falls within the political question
category, the absence of satisfactory creterion for a judicial
determination or the appropriateness of attributing finality to the action
of the political departments of government is a dominant consideration.
This was explained by Justice Brennan in Baker v. Carr,5 thus :
Prominent on the surface of any case held to involve
political question is found a textually demonstrable
constitutional lack of judicially discoverrable and
manageable standards for resolving it; or the impossibility
of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the impossibility
of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning
adherence to a political decision already made; or the
potentiality of embarrassment from from multifarious
pronouncements by various departments on one
question. . . .
To decide whether a matter has in a measure been committed by the
Constitution to another branch of government or retained be the people
to be decided by them in their sovereign capacity, or whether that branch
exceeds whatever authority has been committed, is indeed a delicate
exercise in constitutional interpretation.
In Coleman v. Miller, 6 the United States Supreme Court held that the
efficacy of the ratification by state legislatures of a constitutional
amendment is a political question. On the question of whether the State
Legislature could constitutionally relative an amendment, after the same
had been previously rejected by it, it was held that the ultimate authority
over the question was in Congress in the exercise of its control over the
promulgation of the adoption of the amendment. And in connection with
the second question of whether the amendment has lost its, vitality
through the lapse of time, the Court held that the question was likewise
political, involving "as it does ... an appraisal of a great variety of relevant
conditions, political, social and economic, which can hardly be said to be
within the appropriate range of evidence receivable in a court of justice
and as to which it would be an extravagant extension of juridical
authority to assert judicial notice as the basis of deciding a controversy
with respect to the validity of an amendment actually ratified. On the
other hand, these conditions are appropriate for the consideration of the
political departments of the Government. The questions they involve are
essentially political and not justiciable." '
In their concurring opinions, Justices Black, Roberts, Frankfurter and
Douglas stressed that:
The Constitution grants Congress exclusive power to
control submission off constitutional amendments. Final
determination by Congress their ratification by three-
fourths of the States has taken place 'is conclusive upon
the courts.' In the exercise of that power, Congress, of
course, is governed by the Constitution. However, A
whether submission, intervening procedure for
Congressional determination of ratification conforms to
the commands of the Constitution, call for decisions by
apolitical department of questions of a t@ which this
Court has frequently designated 'political.' And decision
of a 'political question' by the political department' to
which the Constitution has committed it 'conclusively
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 binds the judges, as well as all other officers, citizens and
subjects of ... government. Proclamation under authority
of Congress that an amendment has been ratified will
carry with it a solemn assurance by the Congress that
ratification has taken place as the Constitution
commands. Upon this assurance a proclaimed
amendment must be accepted as a part of the
Constitution, learning to the judiciary its traditional
authority of interpretation. To the extent that the Court's
opinion in the present case even by implieding assumes a
power to make judicial interpretation of the exclusive
constitutional authority of Congress over submission and
by ratification of amendments, we are unable to agree.
Relying on this doctrine enunciated in Coleman v. Miller supra this Court,
in Mabanag v. Lopez Vitol, 7 speaking through Mr. Justice Pedro Tuason,
ruled that the process of constitutional amendment, involving proposal
and ratification, is a political question. In the Mabang case, the petitioners
sought to prevent the enforcement of a resolution of Congress proposing
the "Parity Amendment" to the Philippine Constitution on the ground
that it had not been approved by the three-fourths vote of all the
members of each house as required be Article XV of the 1935
Constitution. It was claimed that three (3) Senators and eight (8)
members of the House of Representatives had been suspended and that
their membership was not considered in the determination of the three-
fourths %- ore In dismissing the petition on the ground that the question
of the validity of the proposal was political, the Court stated:
"If ratification of an amendment is a political question, a proposal which
leads to ratification has to be a political question. The question to steps
complement each other in a scheme intended to achieve a single
objective. It is to be noted that amendatory process as provided in
Section I of Article XV of the Philippine Constitution 'consists of (only)
two distinct parts: proposal and ratification.' There is no logic in attaching
political character to one and withholding that character from the other.
Proposal to amend the Constitution is a highly political function
performed by the Congress in its sovereign legislative capacity and
committed to its charge by the Constitution itself. ..." (At pages 4-5, Italics
supplied.)
It is true that in Gonzales v. Comelec, 8 this Court held that "the issue
whether or not a Resolution of Congress, acting as a constituent
assembly - violates the Constitution is essentially justiciable, not political,
and hence, subject to judicial review." What was involved in Gonzales,
however, was not a proposed What was involved in Gonzales, however,
was not a proposed amendment to the Constitution but an act of
Congress,9 submitting proposed amendments to the Constitution.
Similarly, in Tolentino v. Commission an Elections, 10 what was involved
was not the validity of the proposal to lower the voting age but rather
that of the resolution of the Constitutional Convention submitting the
proposal for ratification. The question was whether piecemeal
amendments to the Constitution could submitted to the people for
approval or rejection.
II
Here, the point has been stressed that the President is acting as agent for
and in behalf of the people in proposing the amendment. there can be no
question that in the referendums of January, 1973 and in the subsequent
referendums the people had clearly and categorically rejected the calling
of the interim National Assembly. As stated in the main opinion, the
Lupang Tagapagpaganap of the Katipunan ng mga Sanggunian, the
Pambansang Katipunan ng mga Barangay, representing 42,000
barangays, the Kabataang Barangay organizations and the various
sectoral groups had proposed the replacement of the interim National
Assembly. These barangays and the Sanggunian assemblies are effective
instrumentalities through which the desires of the people are articulated
and expressed. The Batasang Bayan (Legislative Council), composed of
nineteen (19) cabinet members and nine (9) officials with cabinet rank,
and ninety-one (91) members of the Lupang Tagapagpaganap (Executive
Committee) of the Katipunan ng mga Sangguniang Bayani voted in their
special session to submit directly to the people in a plebiscite on October
16, 1976 the afore-mentioned constitutional amendments. Through the
Pambansang Katipunan by Barangay and the Pampurok ng Katipunan
Sangguniang Bayan, the people have expressed their desire not only to
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abolish the interim National Assembly, but to replace it with a more
representative body acceptable to them in order to effect the desirable
constitutional changes necessary to hasten the political evolution of the
government towards the parliamentary system, while at the same time
ensuring that the gains of the New Society, which are vital to the welfare
of the people, shall be safeguarded. The proposed constitutional
amendments, therefore, represent a consensus of the people.
It would be futile to insist that the intemi National Assembly should have
been convened to propose those amendments pursuant to Section 15 of
Article XVII of the Constitution. This Court, in the case of Aquino v.
Commission or Elections,11 took judicial notice of the fact that in the
referendum of January, 1973, a majority of those who approved the new
Constitution conditioned their votes on the demand that the interim
National Assembly provided in the Transitory Provisions should not be
and the President "in deference to the sovereign will of the Filipino
people" declared that the convening of said body shall be suspended.12
As this Court observed in the Aquino case:
His decision to defer the initial convocation of the byiitttit
National Assembly was supported by the sovereign
people at the by referendum in January, 1973 when the
people voted to postpone the convening of the interim
National Assembly until after at least seven (7) years from
the approval of the new Constitution. And the reason why
the same question was eliminated from the questions to
be submitted at the referendum on February 27, 1975, is
that even some members of the Congress and delegates
of the Constitutional Convention, who are already byjso
ofitto members of the intetini National Assembly are
against such inclusion; because the issue was already
bycciled in the January, 1973 referendum by the sovereign
people indicating thereby their disenchantment with any
Assembly as the former Congress failed to institutionalize
the reforms they demanded and wasted public funds
through endless debates without relieving the suffering
of the general mass of citizenry (p. 302.) The action of the
President in suspending the convening of the interim
National Assembly has met the overwhelming approval of
the people in subsequent referenda.
Since it was the action by the people that gave binding force and effect to
the new Constitution, then it must be accepted as a necessary
consequence that their objection against the immediate convening of the
interim National Assembly must be respected as a positive mandate of
the sovereign.
In the Philippines, which is a unitary state, sovereignty "resides in the
people and all government authority emanates from them."13 The term
"People" as sovereign is comprehensive in its context. The people, as
sovereign creator of all political reality, is not merely the enfranchised
citizens but the political unity of the people. 14 It connotes, therefore, a
people which exists not only in the urgent present but in the continuum
of history. The assumption that the opinion of The People as voters can
be treated as the expression of the interests of the People as a historic
community was, to the distinguished American journalist and public
philosopher, Walter Lipunan, unwarranted.
Because of the discrepancy between The People as Voters
and the People as the corporate nation, the voters have
no title to consider themselves the proprietors of the
commonwealth and to claim that their interests are
Identical to the public interest. A prevailing plurality of the
voters are not The People. The claim that they are is a
bogus title invoked to justify the usurpation of the
executive power by representative assemblies and the
intimidation of public men by demagogue politicians. In
fact demagoguery can be described as the sleight of hand
by which a faction of The People as voters are invested
with the authority of The People. That is why so many
crimes are committed in the People's name 15
In Gonzales v. Comelec, supra, the Court clearly emphasized that the
power to propose amendments or to amend the Constitution is part of
the inherent power of the people as the repository of sovereignty in a
republican state. While Congress may propose amendments to the
130
Constitution, it acts pursuant to authority granted to it by the people
through the Constitution. Both the power to propose and the authority
to approve, therefore, inhere in the people as the bearer of the
Constitution making power.
Absent an interim National Assembly upon whom the people, through
the Constitution, have delegated the authority to exercise constituent
powers, it follows from necessity that either the people should exercise
that power themselves or through any other instrumentality they may
choose. For Law, like Nature, abhors a vacuum (natural vacuum
abhorret).
The question then is whether the President has authority to act for the
people in submitting such proposals for ratification at the plebiscite of
October 16. The political character of the question is, therefore,
particularly manifest, considering that ultimately it is the people who will
decide whether the President has such authority. It certainly involves a
matter which is to be exercised by the people in their sovereign capacity,
hence, it is essentially political, not judicial.
While it is true that the constituent power is not to be confuse with
legislative power in general because the prerogative to propose
amendments is not embraced within the context of ordinary lawmaking,
it must be noted that the proposals to be submitted for ratification in the
forthcoming referendum are, in the final analysis, actually not of the
President but directly of the people themselves, speaking through their
authorized instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in this case:
... The President merely formalized the said proposals in
Presidential Decree No. 1033. It being conceded in all
quarters that sovereignty resides in the people and it
having been demonstrated that their constituent power
to amend the Constitution has not been delegated by
them to any instrumentality of the Government during
the present stage of the transition period of our political
development, the conclusion is ineluctable that their
exertion of that residuary power cannot be vulnerable to
any constitutional challenge as beingultravires.
Accordingly, without venturing to rule on whether or not
the President is vested with constituent power - as it does
not appear necessary to do so in the premises - the
proposals here challenged, being acts of the sovereign
people no less, cannot be said to be afflicted with
unconstitutionality. A fortiori, the concomitant authority
to call a plebiscite and to appropriate funds therefor is
even less vulnerable not only because the President, in
exercising said authority, has acted as a mere ofiffet byf
of the people who made the proposals, but likewise
because the said authority is legislative in nature rather
than constituent.
This is but a recognition that the People of the Philippines
have the inherent, sole and exclusive right of regulating
their own government, and of altering or abolishing their
Constitution whenever it may be necessary to their safety
or happiness. There appears to be no justification, under
the existing, circumstances, for a Court to create by
implication a limitation on - the sovereign power of the
people. As has been clearly explained in a previous case:
There is nothing in the nature of the submission which
should cause the free exercise of it to be obstructed, or
that could render it dangerous to the stability of the
government; because the measure derives all its vital
force from the action of the people at the ballot box, and
there can never be danger in submitting in an established
form to a free people, the proposition whether they will
change their fundamental law The means provided for the
exercise of their Sovereign right of changing their
constitution should receive such a construction as not to
trammel the exercise of the right. Difficulties and
embarrassments in its exercise are in derogation of the
right of free government, which is inherent in the people;
and the best security against tumult and revolution is the
131
 free and unobstructed privilege to the people of the State
to change their constitution in the mode prescribed by
the instrument.
III
The paramount consideration that impelled Us to arrive at the foregoing
opinion is the necessity of ensuring popular control over the constituent
power. "If the people are to control the constituent power - the power to
make and change the fundamental law of the State," observed Wheeler,"
"the process of Constitutional change must not be based too heavily
upon existing agencies of government." Indeed, the basic premise of
republicanism is that the ordinary citizen, the common man. can be
trusted to determine his political destiny. Therefore, it is time that the
people should be accorded the fullest opportunity to decide the laws that
shall provide for their governance. For in the ultimate analysis, the
success of the national endeavor shall depend on the vision, discipline
and I by ininess of the moqqqtai will of every Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the
petitions.
Aquino, J., concur.
MUNOZ PALMA, J., dissenting:
I concur fully with the remarkably frank (so characteristic of him)
dissenting opinion of my distinguished colleague, Justice Claudio
Teehankee. If I am writing this brief statement it is only to unburden
myself of some thoughts which trouble my mind and leave my conscience
with no rest nor peace.
Generally, one who dissents from a majority view of the Court takes a
lonely and at times precarious road, the burden byeing lightened only by
the thought that in this grave task of administering justice, when matters
of conscience are at issue, one must be prepared to espouse and
embrace a rightful cause however unpopular it may be.
1. That sovereignty resides in the people and all government authority
emanates from them is a fundamental, basic principle of government
which cannot be disputed, but when the people have opted to govern
themselves under the mantle of a written Constitution, each and every
citizen, from the highest to the lowliest, has the sacred duty to respect
and obey the Character they have so ordained.
By the Constitution which they establish, they not only tie
up he hands of their official agencies, but their own hands
as well; and neither the officers of the state, nor the
whole people as an aggregate body, are at liberty to take
action in opposition to this fundamental law. (Cooley's
Constitutional Limitations, 7th Ed. p. 56, Italics Our).
The afore-quoted passage from the eminent jurist and author Judge
Cooley although based on declarations of law of more than a century ago,
lays down a principle which to my mind is one of the enduring
cornerstones of the Rule of Law. it is a principle with which I have been
familiar as a student of law under the tutelage of revered Professors, Dr.
Vicente G. Sinco and Justice Jose P. Laurel, and which I pray will prevail at
all times to ensure the existence of a free, stable, and civilized society.
The Filipino people,. wanting to ensure to themselves a democratic
republican form of government, have promulgated a Constitution
whereby the power to govern themselves has been entrusted to and
distributed among three branches of government; they have also
mandated in clear and unmistakable terms the method by which
provisions in their fundamental Charter may be amended or revised.
Having done so, the people are bound by these constitutional limitations.
For while there is no surrender or abdication of the people's ultimate
authority to amend, revise, or adopt a new Constitution, sound reason
demands that they keep themselves within the procedural bounds of the
existing fundamental law. The right of the people to amend or change
their Constitution if and when the need arises is not to be denied, but we
assert that absent a revolutionary state or condition in the country the
132
change must be accomplished through the ordinary, regular and
legitimate processes provided for in the Constitution.'
I cannot subscribe therefore to the view taken by the Solicitor General
that the people, being sovereign, have the authority to amend the
Constitution even in a manner different from and contrary to that
expressly provided for in that instrument, and that the amendatory
process is intended more as a limitation of a power rather than a grant of
power to a particular agency and it should not be construed as limiting
the ultimate sovereign will of the people to decide on amendments to the
Constitution .2 Such a view will seriously undermine the very existence of
a constitutional government and will permit anarchy and/or mob rule to
set afoot and prevail. Was it the Greek philosopher Plato who warned
that the rule of the mob is a prelude to the rule of the tyrant?
I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine
Constitution, Notes and Cases" as relevant to my point:
. . . the amendatory provisions are called a 'constitution of
sovereighty' because they define the constitutional
meaning of 'sovereignty of the people.' Popular
sovereignty, as embodied in the Philippine Constitution, is
not extreme popular sovereignty. As one American writer
put it:
A constitution like the American one serves as a basic
check upon the popular will at any given time. It is the
distinctive function of such written document to classify
certain things as legal fundamentals; these fundamentals
may not be changed except by the slow and cumbersome
process of amendment. The people themselves have
decided, in constitutional convention assembled, to limit
themselves ana future generations in the exercise of the
sovereign power which they would otherwise possess.
And it is precisely such limitation that enables those
subject to governmental authority to appeal from the
people drunk to the people sober in time of excitement
and hysteria. The Constitution, in the neat phrase of the
Iowa court, is the protector of the people against injury by
the .people. *
Truly, what need is there for providing in the Constitution a process by
which the fundamental law may be amended if, after all, the people by
themselves can set the same at naught even in times of peace when civil
authority reigns supreme? To go along with the respondents' theory in
this regard is to render written Constitutions useless or mere "ropes of
sand allowing for a government of men instead of one of laws. For it
cannot be discounted that a situation may arise where the people are
heralded to action at a point of a gun or by the fiery eloquence of a
demagogue, and where passion overpowers reason, and mass action
overthrows legal processes. History has recorded such instances, and I
can think of no better example than that of Jesus Christ of Judea who
was followed and loved by the people while curing the sick, making the
lame walk and the blind see, but shortly was condemned by the same
people turned into fanatic rabble crying out "Crucify Him, Crucify Him"
upon being incited into action by chief priests and elders of Jerusalem.
Yes, to quote once more from Judge Cooley:
A good Constitution should be beyond the reason of
temporary excitement and popular caprice or passion. It is
needed for stability and steadiness; it must yield to the
thought of the people; not to the whim of the people, or
the thought evolved in excitement or hot blood, but the
sober second thought, which alone, if the government is
to be sale can be allowed efficiency. .... Changes in
government are to be feared unless the benefit is
certain." (quoted in Ellingham v. Dye, 99 N.E. 1, 15,)3
Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v.
Hall, 159 N.W., 281; Opinion of Marshall, J. in State ex. rel. Poster v.
Marcus, 152 N.W., 419;
From Kochier v. Hill, Vol. 15, N.W., 609, we quote:
xxx xxx xxx
133
 It has been said that changes in the constitution may be
introduced in disregard of its provisions; that if the
majority of the people desire a change the majority must
be respected, no matter how the change may be effected;
and that the change, if revolution, is peaceful resolution.
...
We fear that the advocates of this new doctrine, in a zeal
to accomplish an end which the majority of the people
desire, have looked at but one phase of the question, and
have not fully considered the terrible consequences which
would almost certainly follow a recognition of the
doctrine for which they contend. It may be that the
incorporation of this amendment in the constitution, even
if the constitution has to be broken to accomplish it,
would not of itself produce any serious results. But if it
should be done by sanctioning the doctrine contended
for, a precedent would be set which would plague the
state for all future time. A Banquo's ghost would arise at
our incantation which would not down at our bidding.
xxx xxx xxx
We ought to ponder long before we adopt a doctrine so
fraught with danger to republican institutions. ...
xxx xxx xxx
Appellants' counsel cite and rely upon section 2, art. 1, of the constitution
of the staff This section is a portion of the bill of rights, and is as follows:
'All political power is inherent in the people. Government is instituted for
the protection, security, and benefit of of the people; and they have the
right at all times to alter or reform the same, whenever the public good
may require.' Abstractly considered, there can bye no doubt of the
correctness of the propositions embraced in this suction. These principles
are older than constitutions and older than governments. The people did
not derive the rights referred to by on the constitution. and, in their
nature, thee are such that the people cannot surrender them ... .
2. Presidential Decrees Nos. 991 and 1033 which call for a national
referendum-plebiscite on October 16, 1976 for the purpose, among other
things, of amending certain provisions of the 1973 Constitution are null
and void as they contravene the express provisions on the amending
process of the 1973 Constitution laid down in Article XVI, Section 1 (1) and
Article XVII, Section 15, more particularly the latter which applies during
the present transition period. The Opinion of Justice Teehankee discusses
in detail this particular matter.
I would just wish to stress the point that although at present there is no
by tterint National Assembly which may propose amendments to the
Constitution, the existence of a so-called "vacuum" or "hiatus" does not
justify a transgression of the constitutional provisions on the manner of
amending the fundamental law. We cannot cure one infirmity - the
existence of a "vacuum" caused by the non-convening of the interim
National Assembly - with another infirmity, that is, doing violence to the
Charter.
All great mutations shake and disorder a state. Good does
not necessarily succeed evil; another evil may succeed and
a worse. (Am. Law Rev. 1889, p. 311., quoted in Ellingham
v. Dye, supra, p. 15)
Respondents contend that the calling of the referendum-plebiscite for
the purpose indicated is a step necessary to restore the state of normalcy
in the country. To my mind, the only possible measure that will lead our
country and people to a condition of normalcy is the lifting or ending of
the state of martial law. If I am constrained to make this statement it is
because so much stress was given during the hearings of these cases on
this particular point, leaving one with the impression that for petitioners
to contest the holding of the October 16 referendum-plebiscite is for
them to assume a position of blocking or installing the lifting of martial
law, which I believe is unfair to the petitioners. Frankly, I cannot see the
connection between the two. My esteemed colleagues should pardon me
therefore if I had ventured to state that the simple solution to the simple
solution to the present dilemma is the lifting of martial law and the
implementation of the constitutional provisions which will usher in the
134
parliamentary form of government ordained in the Constitution, which,
as proclaimed in Proclamation 1102, the people themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then they are
bound by their act and cannot escape from the pretended unfavorable
consequences thereof, the only y being to set in motion the
constitutional machinery by which the supposed desired amendments
may properly be adopted and submitted to the electorate for ratification.
Constitutional processes are to be observed strictly, if we have to
maintain and preserve the system of government decreed under the
fundamental Charter. As said by Justice Enrique Fernando in Mutuc vs.
Commission on Elections
... The concept of the Constitution as the fundamental
law, setting forth the criterion for the validity of any
public act whether proceeding from the highest official or
the lowest funcitonary, is a postulate of our system of
government. That is to manifest fealty to the rule of law,
with priority accorded to that which occupies the
topmost rung in the legal hierarchy. ... (36 SCRA, 228, 234,
italics Ours)
A contrary view would lead to disastrous consequences for, in the words
of Chief Justice Cox of the Supreme Court of Indiana in Ellingham v. Dye,
(supra, p. 7) liberty and popular sovereignty are not meant to give rein to
passion or thoughtless impulse but to allow the exercise of power by the
people for the general good by tistlercoitaitt restraints of law.3 . The true
question before Us is is one of power. Does the incumbent President of
the Philippines possess constituent powers? Again, the negative answer is
explained in detail in the dissenting opinion of Justice Teehankee.
Respondents would justify the incumbent President's exercise of
constituent powers on theory that he is vested with legislative powers as
held by this Court in Benigno S. Aquino, Jr., et al. vs. Commission on
Elections, et al., L-40004, January 31, 1975. 1 wish to stress that although
in my separate opinion in said case I agreed that Section 3 (2) of the
Transitory provisions grants to the incumbent President legislative
powers, I qualified my statement as follows:
.... As to, whether, or not, this unlimited legislative
qqqjwwel of the President continues by exist even after
the ratification of the Constitution is a matter which I am
not ready to concede at the moment, and which at any
rate I believe is not essential in resolving this Petition for
reasons to be given later. Nonetheless, I hold the view
that the President is empowered to issue proclamations,
orders, decrees, etc. to carry out and implement the
objectives of the proclamation of martial law be it under
the 1935 or 1973 Constitution, and for the orderly and
efficient functioning of the government, its
instrumentalities, and agencies. This grant of legislative
power is necessary to fill up a vacuum during the
transition period when the interim National Assembly is
not yet convened and functioning, for otherwise, there
will be a disruption of official functions resulting in a
collapse of the government and of the existing social
order. (62 SCRA, pp. 275,347)
I believe it is not disputed that legislative power is essentially different
from constituent power; one does not encompass the other unless so
specified in the Charter, and the 1973 Constitution contains provisions in
this regard. This is well-explained in Justice Teehankee's Opinion. The
state of necessity brought about by the current political situation,
invoked by the respondents, provides no source of power to propose
amendments to the existing Constitution. Must we "bend the
Constitution to suit the law of the hour or cure its defects "by inflicting
upon it a wound which nothing can heal commit one assault after the
other "until all respect for the fundamental law is lost and the powers of
government are just what those in authority please to call them?'"5 Or
can we now ignore what this Court, speaking through Justice Barredo,
said in Tolentino vs. Comelec:
... let those who would put aside, invoking grounds at
best controversial, any mandate of the fundamental law
purportedly by order to attain some laudable objective
bear in mind that someday somehow others with
purportedly more laudable objectives may take
135
 advantages of the precedent in continue the destruction
of the Constitution, making those who laid down the
precedent of justifying deviations from the requirements
of the Constitution the victims of their own folly. 6
Respondents emphatically assert that the final word is the people's word
and that ultimately it is in the hands of the people where the final
decision rests. (Comment, pp. 18, 19, 22) Granting in gratia argument that
it is so, let it be an expression of the will of the people a normal political
situation and not under the aegis of martial rule for as I have stated in
Aquino vs. Comelec, et al., supra, a referendum (and now a plebiscite)
held under a regime of martial law can be of no far reaching significance
because it is being accomplished under an atmosphere or climate of fear
as it entails a wide area of curtailment and infringement of individual
rights, such as, human liberty, property rights, rights of free expression
and assembly, protection against unreasonable searches and seizures,
liberty of abode and of travel, and so on.
4. The other issues such as the sufficiency and proper submission of the
proposed amendments for ratification by the people are expounded in
Justice Teehankee's Opinion. I wish to stress indeed that it is incorrect to
state that the thrust of the proposed amendments is the abolition of the
interim National Assembly and its substitution with an "interim Batasang
Pambansa their in by in Proposed amendment No. 6 will permit or allow
the concentration of power in one man - the Executive - Prime Minister or
President or whatever you may call him - for it gives him expressly (which
the 1973 Constitution or the 1935 Constitution does not) legislative
powers even during the existence of the appropriate legislative body,
dependent solely on the executive's judgment on the existence of a
grave emergency or a threat or imminence thereof **
I must be forgiven if, not concerned with the present, I am haunted
however by what can happen in the future, when we shall all be gone.
Verily, this is a matter of grave concern which necessitates full, mature,
sober deliberation of the people but which they can do only in a climate
of freedom without the restraints of martial law. I close, remembering
what Claro M. Recto, President of the Constitutional Convention which
drafted the 1935 Philippine Constitution, once said: .
... Nor is it enough that our people possess a written
constitution in order that their government may be called
constitutional. To be deserving of this name, and to drive
away all lanirer of anarchy as well as of dictatorship
whether by one man or a few, it is necessary that both the
government authorities and the people faithfully observe
and obey the constitution, and that the citizens be duly
conversant not only with their rights but also with their
duties...7
Jose P. Laurel who served his people as Justice of the Supreme Court of
this country gave this reminder; the grave and perilous task of halting
transgressions and vindicating cherished rights is reposed mainly oil the
Judiciary and therefore let the Courts be the vestal keepers of the purity
and sanctity of our Constitution.' On the basis of the foregoing, I vote to
declare Presidential Decrees Nos. 991 and 1033 unconstitutional and
enjoin the implementation thereof.
CONCEPCION JR., J., concurring:
I vote for the dismissal of the petitions.
1. The issue is not political and therefore justiciable.
The term "political question", as this Court has previously defined, refers
to those questions which, under the constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with the issues
dependent upon the wisdom, not legality, of a particular measure.1
Here, the question raised is whether the President has authority to
propose to the people amendments to the Constitution which the
petitioners claim is vested solely upon the National Assembly, the
constitutional convention called for the purpose, and the by the National
Assembly. This is not a political question since it involves the
determination of conflicting claims of authority under the constitution.
136
In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or
not a Resolution of Congress, acting as a constituent assembly, violates
the Constitution, ruled that the question is essentially justiciable, not
political, and hence, subject to judicial review.
In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to its
position regarding its jurisdiction vis-a-vis the constitutionality of the acts
of Congress, acting as a constituent assembly, as well as those of a
constitutional convention called for the purpose of proposing
amendments to the constitution. Insofar as observance of constitutional
provisions on the procedure for amending the constitution is concerned,
the issue is cognizable by this Court under its powers of judicial review.
2. As to the merits, a brief backdrop of the decision to hold the
referendum-plebiscite will help resolve the issue. It is to be noted that
under the 1973 Constitution, an interim National Assembly was organized
to bring about an orderly transition from the presidential to the
parliamentary system of government.' The people, however, probably
distrustful of the members who are old time politicians and constitutional
delegates who had voted themselves by to membership in the interim
National Assembly, voted against the convening of the said interim
assembly for at least seven years thus creating a political stalemate and a
consequent delay' in the transformation of the government into the
parliamentary system. To resolve the impasse, the President, at the
instance of the barangays and sanggunian assemblies through their duly
authorized instrumentalities who recommended a study of the feasibility
of abolishing and replacing the by interim National Assembly with
another interim body truly representative of the people in a reformed
society, issued Presidential Decree No. 991, on September 2, 1976, calling
for a national referendum on October -16, 1976 to ascertain the wishes of
the people as to the ways and means that may be available to attain the
objective; providing for a period of educational and information
campaign on the issues; and establishing the mechanics and manner for
holding thereof. But the people, through their barangays, addressed
resolutions to the Batasang Bayan, expressing their desire to have the
constitution amended, thus prompting the President to issue Presidential
Decree No. 1033, stating the questions to @ submitted to the people in
the referendum-plebiscite on October 16,1976.
As will be seen, the authority to amend the Constitution was removed
from the interim National Assembly and transferred to the seat of
sovereignty itself. Since the Constitution emanates from the people who
are the repository of all political powers, their authority to amend the
Constitution through the means they have adopted, aside from those
mentioned in the Constitution, cannot be gainsaid. Not much reflection is
also needed to show that the President did not exercise his martial law
legislative powers when he proposed the amendments to the
Constitution. He was merely acting as an instrument to carry out the will
of the people. Neither could he convene the interim National Assembly,
as suggested by the petitioners, without doing violence to the people's
will expressed overwhelmingly when they decided against convening the
interim assembly for at least seven years.
3. The period granted to the people to consider the proposed
amendments is reasonably long and enough to afford intelligent
discussion of the issues to be voted upon. PD 991 has required the
barangays to hold assemblies or meetings to discuss and debate on the
referendum questions, which in fact they have been doing. Considering
that the proposed amendments came from the representatives of the
people themselves, the people must have already formed a decision by
this time on what stand to take on the proposed amendments come the
day for the plebiscite. Besides, the Constitution itself requires the holding
of a plebiscite for the ratification of an amendment not later than three
(3) months after the approval of such amendment or revision but without
setting a definite period within which such plebiscite shall not be held.
From this I can only conclude that the framers of the Constitution desired
that only a short period shall elapse from the approval of such
amendment or resolution to its ratification by the people.
137
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-56350 April 2, 1981
SAMUEL C. OCCENA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE
NATIONAL TREASURER, THE DIRECTOR OF PRINTING, respondents.
G.R. No. L-56404 April 2, 1981
RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-
IMBONG, RAY ALLAN T. DRILON, NELSON B. MALANA and GIL M.
TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS,
respondents.
FERNANDO, C.J.:
The challenge in these two prohibition proceedings against the validity of
three Batasang Pambansa Resolutions 1 proposing 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 as taxpayers. The rather unorthodox aspect of these petitions is
the assertion that the 1973 Constitution is not the fundamental law, the
Javellana 2 ruling to the contrary notwithstanding. To put it at its mildest,
such an approach has the arresting charm of novelty but nothing else. It
is in fact self defeating, for if such were indeed the case, petitioners have
come to the wrong forum. We sit as a Court duty-bound to uphold and
apply that Constitution. To contend otherwise as was done here would
be, quite clearly, an exercise in futility. Nor are the arguments of
petitioners cast in the traditional form of constitutional litigation any
more persuasive. For reasons to be set forth, we dismiss the petitions.
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
138
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
2. We come to the crucial issue, the power of the Interim Batasang
Pambansa to propose amendments and how it may be exercised. More
specifically as to the latter, the extent of the changes that may be
introduced, the number of votes necessary for the validity of a proposal,
and the standard required for a proper submission. As was stated earlier,
petitioners were unable to demonstrate that the challenged resolutions
are tainted by unconstitutionality.
(1) The existence of the power of the Interim Batasang Pambansa is
indubitable. The applicable provision in the 1976 Amendments is quite
explicit. Insofar as pertinent it reads thus: "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." 14 One of such powers is precisely that of proposing
amendments. The 1973 Constitution in its Transitory Provisions vested the
Interim National Assembly with the power to propose amendments upon
special call by the Prime Minister by a vote of the majority of its members
to be ratified in accordance with the Article on Amendments. 15 When,
therefore, the Interim Batasang Pambansa, upon the call of the President
and Prime Minister Ferdinand E. Marcos, met as a constituent body it
acted by virtue Of such impotence Its authority to do so is clearly beyond
doubt. It could and did propose the amendments embodied in the
resolutions now being assailed. It may be observed parenthetically that as
far as petitioner Occena is Concerned, the question of the authority of
the Interim Batasang Pambansa to propose amendments is not new. In
Occena v. Commission on Elections, 16 filed by the same petitioner,
decided on January 28, 1980, such a question was involved although not
directly passed upon. To quote from the opinion of the Court penned by
Justice Antonio in that case: "Considering that the proposed amendment
of Section 7 of Article X of the Constitution extending the retirement of
members of the Supreme Court and judges of inferior courts from sixty-
five (65) to seventy (70) years is but a restoration of the age of
retirement provided in the 1935 Constitution and has been intensively and
extensively discussed at the Interim Batasang Pambansa, as well as
through the mass media, it cannot, therefore, be said that our people are
unaware of the advantages and disadvantages of the proposed
amendment." 17
(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 the Interim 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; 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
139
questions. The Interim Batasang Pambansa, sitting as a constituent body, as well as through the mass media, [ so that ] it cannot, therefore, be said
can propose amendments. In that capacity, only a majority vote is that our people are unaware of the advantages and disadvantages of the
needed. It would be an indefensible proposition to assert that the three- proposed amendment [ s ]." 22
fourth votes required when it sits as a legislative body applies as well
when it has been convened as the agency through which amendments WHEREFORE, the petitions are dismissed for lack of merit. No costs.
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 Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro
case, the Interim Batasang Pambansa exercises its constituent power to and Melencio-Herrera, JJ., concur.
propose amendments. Moreover, even on the assumption that the
requirement of three- fourth votes applies, such extraordinary majority Abad Santos, J., is on leave.
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 Separate Opinions
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 TEEHANKEE, J., dissenting:
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 I vote to give due course to the petitions at bar and to grant the
could not plausibly be maintained that they were properly informed as to application for a temporary restraining order enjoining the plebiscite
the proposed changes. As to the period, the Constitution indicates the scheduled for April 7, 1981.
way the matter should be resolved. There is no ambiguity to the
applicable provision: "Any amendment to, or revision of, this Constitution
1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the
shall be valid when ratified by a majority of the votes cast in a plebiscite
invalidity of the October 1976 amendments proposals to the 1973
which shall be held not later than three months after the approval of such
Constitution for not having been proposed nor adopted in accordance
amendment or revision." 21 The three resolutions were approved by the
with the mandatory provisions thereof, as restated by me in Hidalgo vs.
Interim Batasang Pambansa sitting as a constituent assembly on February
Marcos 2 and De la Llana vs. Comelec 3 , questioning the validity of the
5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of the
December 17, 1977 referendum exercise as to the continuance in office
plebiscite is set for April 7, 1981. It is thus within the 90-day period
as incumbent President and to be Prime Minister after the organization of
provided by the Constitution. Thus any argument to the contrary is
the Interim Batasang Pambansa as provided for in Amendment No. 3 of
unavailing. As for the people being adequately informed, it cannot be
the 1976 Amendments, I am constrained to dissent from the majority
denied that this time, as in the cited 1980 Occena opinion of Justice
decision of dismissal of the petitions.
Antonio, where the amendment restored to seventy the retirement age
of members of the judiciary, the proposed amendments have "been
intensively and extensively discussed at the Interim Batasang Pambansa,
140
I had held in Sanidad that the transcendental constituent power to
propose and approve amendments to the Constitution as well as to set
up the machinery and prescribe the procedure for the ratification of the
amendments proposals has been withheld by the Constitution from the
President (Prime Minister) as sole repository of executive power and that
so long as the regular National Assembly provided for in Article VIII of the
Constitution had not come to existence and the proposals for
constitutional amendments were now deemed necessary to be discussed
and adopted for submittal to the people, strict adherence with the
mandatory requirements of the amending process as provided in the
Constitution must be complied with. This means, under the prevailing
doctrine of Tolentino vs. Comelec 4 that the proposed amendments to be
valid must come from the constitutional agency vested with the
constituent power to do so, i.e. in the Interim National Assembly
provided in the Transitory Article XVII which would then have to be
convened and not from the executive power as vested in the President
(Prime Minister) from whom such constituent power has been withheld.
2. As restated by me in the 1977 case of Hidalgo, under the controlling
doctrine of Tolentino, the October 1976 constitutional amendments which
created the Interim Batasang Pambansa in lieu of the Interim National
Assembly were invalid since as ruled by the Court therein, constitutional
provisions on amendments "dealing with the procedure or manner of
amending the fundamental law are binding upon the Convention and the
other departments of the government (and) are no less binding upon the
people" and "the very Idea of deparcing from the fundamental law is
anachronistic in the realm of constitutionalism and repugnant to the
essence of the rule of law." The proposed amendments at bar having
been adopted by the Interim Batasang Pambansa as the fruit of the
invalid October, 1976 amendments must necessarily suffer from the same
Congenital infirmity.
3. Prescinding from the foregoing and assuming the validity of the
proposed amendments, I reiterate my stand in Sanidad that the doctrine
of fair and proper submission firs enunciated by a simple majority of six
Justices (of an eleven member Court prior to the 1973 Constitution which
increased the official composition of the Court to fifteen) in Gonzales vs.
Comelec 5 and subsequently officially adopted by the required
constitutional two-thirds majority vote of the Court (of eight votes, then)
in Tolentino is fully applicable in the case at bar. The three resolutions
proposing complex, complicated and radical amendments of our very
structure of government were considered and approved by the Interim
Batasang Pambansa sitting as a constituent assembly on February 27,
1981. It set the date of the plebiscite for thirty-nine days later on April 7,
1981 which is totally inadequate and far short of the ninety-day period
fixed by the Constitution for submittal to the people to "sufficiently
inform them of the amendments to be voted upon, to conscientiously
deliberate thereon and to express their will in a genuine manner." 6
4. "The minimum requirements that must be met in order that there can
be a proper submission to the people of a proposed constitutional
amendment" as stated by retired Justice Conrado V. Sanchez in his
separate opinion in Gonzales bears repeating as follows: "... we take the
view that the words 'submitted to the people for their ratification,' if
construed in the light of the nature of the Constitution a fundamental
charter that is legislation direct from the people, an expression of their
sovereign will is that it can only be amended by the people expressing
themselves according to the procedure ordained by the Constitution.
Therefore, amendments must be fairly laid before the people for their
blessing or spurning. The people are not to be mere rubber stamps. They
are not to vote blindly. They must be afforded ample opportunity to mull
over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly
insidious influences. We believe the word 'submitted' can only mean that
the government, within its maximum capabilities, should strain every
short to inform every citizen of the provisions to be amended, and the
proposed amendments and the meaning, nature and effects thereof. ...
What the Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten the
people, educate them with respect to their act of ratification or rejection.
For, as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent consent or
rejection. If with all these safeguards the people still approve the
141
amendments no matter how prejudicial it is to them, then so be it. For the
people decree their own fate."
Justice Sanchez therein ended the passage with an apt citation that "...
The great men who builded the structure of our state in this respect had
the mental vision of a good Constitution voiced by Judge Cooley, who has
said 'A good Constitution should be beyond the reach of temporary
excitement and popular caprice or passion. It is needed for stability and
steadiness; it must yield to the thought of the people; not to the whim of
the people, or the thought evolved in excitement, or hot blood, but the
sober second thought, which alone if the government is to be safe, can
be allowed efficacy ... Changes in government are to be feard unless
benefit is certain.' As Montaign says: 'All great mutation shake and
disorder a state. Good does not necessarily succeed evil; another evil may
succeed and a worse."'
Separate Opinions
TEEHANKEE, J., dissenting:
I vote to give due course to the petitions at bar and to grant the
application for a temporary restraining order enjoining the plebiscite
scheduled for April 7, 1981.
1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the
invalidity of the October 1976 amendments proposals to the 1973
Constitution for not having been proposed nor adopted in accordance
with the mandatory provisions thereof, as restated by me in Hidalgo vs.
Marcos 2 and De la Llana vs. Comelec 3 , questioning the validity of the
December 17, 1977 referendum exercise as to the continuance in office
as incumbent President and to be Prime Minister after the organization of
the Interim Batasang Pambansa as provided for in Amendment No. 3 of
the 1976 Amendments, I am constrained to dissent from the majority
decision of dismissal of the petitions.
I had held in Sanidad that the transcendental constituent power to
propose and approve amendments to the Constitution as well as to set
up the machinery and prescribe the procedure for the ratification of the
amendments proposals has been withheld by the Constitution from the
President (Prime Minister) as sole repository of executive power and that
so long as the regular National Assembly provided for in Article VIII of the
Constitution had not come to existence and the proposals for
constitutional amendments were now deemed necessary to be discussed
and adopted for submittal to the people, strict adherence with the
mandatory requirements of the amending process as provided in the
Constitution must be complied with. This means, under the prevailing
doctrine of Tolentino vs. Comelec 4 that the proposed amendments to be
valid must come from the constitutional agency vested with the
constituent power to do so, i.e. in the Interim National Assembly
provided in the Transitory Article XVII which would then have to be
convened and not from the executive power as vested in the President
(Prime Minister) from whom such constituent power has been withheld.
2. As restated by me in the 1977 case of Hidalgo, under the controlling
doctrine of Tolentino, the October 1976 constitutional amendments which
created the Interim Batasang Pambansa in lieu of the Interim National
Assembly were invalid since as ruled by the Court therein, constitutional
provisions on amendments "dealing with the procedure or manner of
amending the fundamental law are binding upon the Convention and the
other departments of the government (and) are no less binding upon the
people" and "the very Idea of deparcing from the fundamental law is
anachronistic in the realm of constitutionalism and repugnant to the
essence of the rule of law." The proposed amendments at bar having
been adopted by the Interim Batasang Pambansa as the fruit of the
invalid October, 1976 amendments must necessarily suffer from the same
Congenital infirmity.
3. Prescinding from the foregoing and assuming the validity of the
proposed amendments, I reiterate my stand in Sanidad that the doctrine
of fair and proper submission firs enunciated by a simple majority of six
142
Justices (of an eleven member Court prior to the 1973 Constitution which ratification. There must be fair submission, intelligent consent or
increased the official composition of the Court to fifteen) in Gonzales vs. rejection. If with all these safeguards the people still approve the
Comelec 5 and subsequently officially adopted by the required amendments no matter how prejudicial it is to them, then so be it. For the
constitutional two-thirds majority vote of the Court (of eight votes, then) people decree their own fate."
in Tolentino is fully applicable in the case at bar. The three resolutions
proposing complex, complicated and radical amendments of our very Justice Sanchez therein ended the passage with an apt citation that "...
structure of government were considered and approved by the Interim The great men who builded the structure of our state in this respect had
Batasang Pambansa sitting as a constituent assembly on February 27, the mental vision of a good Constitution voiced by Judge Cooley, who has
1981. It set the date of the plebiscite for thirty-nine days later on April 7, said 'A good Constitution should be beyond the reach of temporary
1981 which is totally inadequate and far short of the ninety-day period excitement and popular caprice or passion. It is needed for stability and
fixed by the Constitution for submittal to the people to "sufficiently steadiness; it must yield to the thought of the people; not to the whim of
inform them of the amendments to be voted upon, to conscientiously the people, or the thought evolved in excitement, or hot blood, but the
deliberate thereon and to express their will in a genuine manner." 6 sober second thought, which alone if the government is to be safe, can
be allowed efficacy ... Changes in government are to be feard unless
4. "The minimum requirements that must be met in order that there can benefit is certain.' As Montaign says: 'All great mutation shake and
be a proper submission to the people of a proposed constitutional disorder a state. Good does not necessarily succeed evil; another evil may
amendment" as stated by retired Justice Conrado V. Sanchez in his succeed and a worse."'
separate opinion in Gonzales bears repeating as follows: "... we take the
view that the words 'submitted to the people for their ratification,' if
construed in the light of the nature of the Constitution a fundamental
charter that is legislation direct from the people, an expression of their
sovereign will is that it can only be amended by the people expressing
themselves according to the procedure ordained by the Constitution.
Therefore, amendments must be fairly laid before the people for their
blessing or spurning. The people are not to be mere rubber stamps. They
are not to vote blindly. They must be afforded ample opportunity to mull
over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly
insidious influences. We believe the word 'submitted' can only mean that
the government, within its maximum capabilities, should strain every
short to inform every citizen of the provisions to be amended, and the
proposed amendments and the meaning, nature and effects thereof. ...
What the Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten the
people, educate them with respect to their act of ratification or rejection.
For, as we have earlier stated, one thing is submission and another is
143
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA
ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA &
CARMEN PEDROSA, in their capacities as founding members of the
People's Initiative for Reforms, Modernization and Action (PIRMA),
respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG
KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR BROTHERHOOD
INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE
PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN),
petitioners-intervenors.
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for
prohibition under Rule 65 of the Rules of Court is the right of the people
to directly propose amendments to the Constitution through the system
of initiative under Section 2 of Article XVII of the 1987 Constitution.
Undoubtedly, this demands special attention, as this system of initiative
was unknown to the people of this country, except perhaps to a few
scholars, before the drafting of the 1987 Constitution. The 1986
Constitutional Commission itself, through the original proponent1 and the
main sponsor2 of the proposed Article on Amendments or Revision of the
Constitution, characterized this system as "innovative".3 Indeed it is, for
both under the 1935 and 1973 Constitutions, only two methods of
proposing amendments to, or revision of, the Constitution were
recognized, viz., (1) by Congress upon a vote of three-fourths of all its
members and (2) by a constitutional convention.4 For this and the other
reasons hereafter discussed, we resolved to give due course to this
petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with
public respondent Commission on Elections (hereafter, COMELEC) a
"Petition to Amend the Constitution, to Lift Term Limits of Elective
Officials, by People's Initiative" (hereafter, Delfin Petition)5 wherein
Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all
over the country;
2. Causing the necessary publications of said Order and
the attached "Petition for Initiative on the 1987
Constitution, in newspapers of general and local
circulation;
3. Instructing Municipal Election Registrars in all Regions
of the Philippines, to assist Petitioners and volunteers, in
establishing signing stations at the time and on the dates
designated for the purpose.
Delfin alleged in his petition that he is a founding member of the
Movement for People's Initiative,6 a group of citizens desirous to avail of
the system intended to institutionalize people power; that he and the
members of the Movement and other volunteers intend to exercise the
power to directly propose amendments to the Constitution granted
under Section 2, Article XVII of the Constitution; that the exercise of that
power shall be conducted in proceedings under the control and
supervision of the COMELEC; that, as required in COMELEC Resolution
No. 2300, signature stations shall be established all over the country, with
the assistance of municipal election registrars, who shall verify the
signatures affixed by individual signatories; that before the Movement
144
and other volunteers can gather signatures, it is necessary that the time
and dates to be designated for the purpose be first fixed in an order to be
issued by the COMELEC; and that to adequately inform the people of the
electoral process involved, it is likewise necessary that the said order, as
well as the Petition on which the signatures shall be affixed, be published
in newspapers of general and local circulation, under the control and
supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be
amended are Sections 4 and 7 of Article VI,7 Section 4 of Article VII,8 and
Section 8 of Article X9 of the Constitution. Attached to the petition is a
copy of a "Petition for Initiative on the 1987 Constitution" 10 embodying
the proposed amendments which consist in the deletion from the
aforecited sections of the provisions concerning term limits, and with the
following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL
ELECTIVE GOVERNMENT OFFICIALS, AMENDING FOR THE
PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4
OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE
1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted
to the people, and after it is signed by at least twelve per cent of the total
number of registered voters in the country it will be formally filed with
the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the
number UND 96-037 (INITIATIVE), the COMELEC, through its Chairman,
issued an Order 11 (a) directing Delfin "to cause the publication of the
petition, together with the attached Petition for Initiative on the 1987
Constitution (including the proposal, proposed constitutional
amendment, and the signature form), and the notice of hearing in three
(3) daily newspapers of general circulation at his own expense" not later
than 9 December 1996; and (b) setting the case for hearing on 12
December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following
appeared: Delfin and Atty. Pete Q. Quadra; representatives of the
People's Initiative for Reforms, Modernization and Action (PIRMA);
intervenor-oppositor Senator Raul S. Roco, together with his two other
lawyers, and representatives of, or counsel for, the Integrated Bar of the
Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public
Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN). 12
Senator Roco, on that same day, filed a Motion to Dismiss the Delfin
Petition on the ground that it is not the initiatory petition properly
cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the
oppositors to file their "memoranda and/or oppositions/memoranda"
within five days. 13
On 18 December 1996, the petitioners herein Senator Miriam Defensor
Santiago, Alexander Padilla, and Maria Isabel Ongpin filed this special
civil action for prohibition raising the following arguments:
(1) The constitutional provision on people's initiative to
amend the Constitution can only be implemented by law
to be passed by Congress. No such law has been passed;
in fact, Senate Bill No. 1290 entitled An Act Prescribing and
Regulating Constitution Amendments by People's Initiative,
which petitioner Senator Santiago filed on 24 November
1995, is still pending before the Senate Committee on
Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems
of initiative, namely, initiative on the Constitution, on
statutes, and on local legislation. However, it failed to
provide any subtitle on initiative on the Constitution,
unlike in the other modes of initiative, which are
specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of people's
initiative to amend the Constitution was left to some
future law. Former Senator Arturo Tolentino stressed this
deficiency in the law in his privilege speech delivered
145
 before the Senate in 1994: "There is not a single word in
that law which can be considered as implementing [the
provision on constitutional initiative]. Such implementing
provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of
the law after publication in print media. This indicates that
the Act covers only laws and not constitutional
amendments because the latter take effect only upon
ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January
1991 to govern "the conduct of initiative on the
Constitution and initiative and referendum on national
and local laws, is ultra vires insofar as initiative on
amendments to the Constitution is concerned, since the
COMELEC has no power to provide rules and regulations
for the exercise of the right of initiative to amend the
Constitution. Only Congress is authorized by the
Constitution to pass the implementing law.
(5) The people's initiative is limited to amendments to the
Constitution, not to revision thereof. Extending or lifting
of term limits constitutes a revision and is, therefore,
outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for
people's initiative; neither the COMELEC nor any other
government department, agency, or office has realigned
funds for the purpose.
To justify their recourse to us via the special civil action for prohibition,
the petitioners allege that in the event the COMELEC grants the Delfin
Petition, the people's initiative spearheaded by PIRMA would entail
expenses to the national treasury for general re-registration of voters
amounting to at least P180 million, not to mention the millions of
additional pesos in expenses which would be incurred in the conduct of
the initiative itself. Hence, the transcendental importance to the public
and the nation of the issues raised demands that this petition for
prohibition be settled promptly and definitely, brushing aside
technicalities of procedure and calling for the admission of a taxpayer's
and legislator's suit. 14 Besides, there is no other plain, speedy, and
adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to
comment on the petition within a non-extendible period of ten days from
notice; and (b) issued a temporary restraining order, effective
immediately and continuing until further orders, enjoining public
respondent COMELEC from proceeding with the Delfin Petition, and
private respondents Alberto and Carmen Pedrosa from conducting a
signature drive for people's initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their
Comment 15 on the petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO
THE NATIONAL TREASURY FOR GENERAL REGISTRATION
OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE
HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE
"COMELEC GRANTS THE PETITION FILED BY
RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE
NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE
PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN
THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT
OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER
THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES
SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF
THE DAILY PER DIEM OF THE SUPERVISING SCHOOL
TEACHERS IN THE SIGNATURE GATHERING TO BE
DEPOSITED and TO BE PAID BY DELFIN AND HIS
VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS
ONLY ON THE SIGNATURE GATHERING WHICH BY LAW
146
COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY"
PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD
BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER
26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO.
125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS
THE ENABLING LAW IMPLEMENTING THE POWER OF
PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE
CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S
SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE
ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON
JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS
UPHELD BY THE HONORABLE COURT IN THE RECENT
SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC
BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R.
NO. 125416 WHERE THE HONORABLE COURT SAID: "THE
COMMISSION ON ELECTIONS CAN DO NO LESS BY
SEASONABLY AND JUDICIOUSLY PROMULGATING
GUIDELINES AND RULES FOR BOTH NATIONAL AND
LOCAL USE, IN IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL
NO. 1290 CONTAINS A PROVISION DELEGATING TO THE
COMELEC THE POWER TO "PROMULGATE SUCH RULES
AND REGULATIONS AS MAY BE NECESSARY TO CARRY
OUT THE PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290,
ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF
OFFICE OF ELECTIVE OFFICIALS PROVIDED UNDER THE
1987 CONSTITUTION IS NOT A "REVISION" OF THE
CONSTITUTION. IT IS ONLY AN AMENDMENT.
"AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A
FEW SPECIFIC PROVISIONS OF THE CONSTITUTION.
REVISION CONTEMPLATES A RE-EXAMINATION OF THE
ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT
EXTENT IT SHOULD BE ALTERED." (PP. 412-413, 2ND. ED.
1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS,
S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a
Comment 16 which starts off with an assertion that the instant petition is
a "knee-jerk reaction to a draft 'Petition for Initiative on the 1987
Constitution'. . . which is not formally filed yet." What he filed on 6
December 1996 was an "Initiatory Pleading" or "Initiatory Petition,"
which was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under
COMELEC power and function. On the substantive allegations of the
petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law,
R.A. No. 6735, which governs the conduct of initiative to
amend the Constitution. The absence therein of a subtitle
for such initiative is not fatal, since subtitles are not
requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that
the proposition in an initiative to amend the Constitution
approved by the majority of the votes cast in the
plebiscite shall become effective as of the day of the
plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra
vires is contradicted by (a) Section 2, Article IX-C of the
Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative,
referendum, and recall; and (b) Section 20 of R.A. 6735,
which empowers the COMELEC to promulgate such rules
and regulations as may be necessary to carry out the
purposes of the Act.
147
 (4) The proposed initiative does not involve a revision of,
but mere amendment to, the Constitution because it
seeks to alter only a few specific provisions of the
Constitution, or more specifically, only those which lay
term limits. It does not seek to reexamine or overhaul the
entire document.
As to the public expenditures for registration of voters, Delfin considers
petitioners' estimate of P180 million as unreliable, for only the COMELEC
can give the exact figure. Besides, if there will be a plebiscite it will be
simultaneous with the 1997 Barangay Elections. In any event, fund
requirements for initiative will be a priority government expense because
it will be for the exercise of the sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2
January 1997, the Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to
amend the Constitution. Its Section 2 on Statement of
Policy explicitly affirms, recognizes, and guarantees that
power; and its Section 3, which enumerates the three
systems of initiative, includes initiative on the Constitution
and defines the same as the power to propose
amendments to the Constitution. Likewise, its Section 5
repeatedly mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is
not necessary in R.A. No. 6735 because, being national in
scope, that system of initiative is deemed included in the
subtitle on National Initiative and Referendum; and
Senator Tolentino simply overlooked pertinent provisions
of the law when he claimed that nothing therein was
provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a
material proof that R.A. No. 6735 does not deal with
initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes
a mere amendment to the Constitution, not a revision
thereof.
(5) COMELEC Resolution No. 2300 was validly issued
under Section 20 of R.A. No. 6735 and under the Omnibus
Election Code. The rule-making power of the COMELEC to
implement the provisions of R.A. No. 6735 was in fact
upheld by this Court in Subic Bay Metropolitan Authority
vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the
Motion to Lift Temporary Restraining Order filed by private respondents
through Atty. Quadra, as well as the latter's Manifestation stating that he
is the counsel for private respondents Alberto and Carmen Pedrosa only
and the Comment he filed was for the Pedrosas; and (c) granted the
Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and
allowed him to file his Petition in Intervention not later than 20 January
1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK)
and the Movement of Attorneys for Brotherhood Integrity and
Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to
the motion was their Petition in Intervention, which was later replaced by
an Amended Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere
amendment to, but a revision of, the Constitution
because, in the words of Fr. Joaquin Bernas, S.J., 18 it
would involve a change from a political philosophy that
rejects unlimited tenure to one that accepts unlimited
tenure; and although the change might appear to be an
isolated one, it can affect other provisions, such as, on
synchronization of elections and on the State policy of
guaranteeing equal access to opportunities for public
service and prohibiting political dynasties. 19 A revision
cannot be done by initiative which, by express provision
148
of Section 2 of Article XVII of the Constitution, is limited to
amendments.
(2) The prohibition against reelection of the President and
the limits provided for all other national and local elective
officials are based on the philosophy of governance, "to
open up the political arena to as many as there are
Filipinos qualified to handle the demands of leadership, to
break the concentration of political and economic powers
in the hands of a few, and to promote effective proper
empowerment for participation in policy and decision-
making for the common good"; hence, to remove the
term limits is to negate and nullify the noble vision of the
1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of
initiative, particularly in a conflict-of-interest situation.
Initiative is intended as a fallback position that may be
availed of by the people only if they are dissatisfied with
the performance of their elective officials, but not as a
premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be
called the enabling law that implements the people's
initiative on amendments to the Constitution. It fails to
state (a) the proper parties who may file the petition, (b)
the appropriate agency before whom the petition is to be
filed, (c) the contents of the petition, (d) the publication
of the same, (e) the ways and means of gathering the
signatures of the voters nationwide and 3% per legislative
district, (f) the proper parties who may oppose or
question the veracity of the signatures, (g) the role of the
COMELEC in the verification of the signatures and the
sufficiency of the petition, (h) the appeal from any
decision of the COMELEC, (I) the holding of a plebiscite,
and (g) the appropriation of funds for such people's
initiative. Accordingly, there being no enabling law, the
COMELEC has no jurisdiction to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or
remedied by COMELEC Resolution No. 2300, since the
COMELEC is without authority to legislate the procedure
for a people's initiative under Section 2 of Article XVII of
the Constitution. That function exclusively pertains to
Congress. Section 20 of R.A. No. 6735 does not constitute
a legal basis for the Resolution, as the former does not set
a sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that
implements the people's right to initiate constitutional amendments. This
law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-
authored the House Bill and even delivered a sponsorship speech
thereon. He likewise submits that the COMELEC was empowered under
Section 20 of that law to promulgate COMELEC Resolution No. 2300.
Nevertheless, he contends that the respondent Commission is without
jurisdiction to take cognizance of the Delfin Petition and to order its
publication because the said petition is not the initiatory pleading
contemplated under the Constitution, Republic Act No. 6735, and
COMELEC Resolution No. 2300. What vests jurisdiction upon the
COMELEC in an initiative on the Constitution is the filing of a petition for
initiative which is signed by the required number of registered voters. He
also submits that the proponents of a constitutional amendment cannot
avail of the authority and resources of the COMELEC to assist them is
securing the required number of signatures, as the COMELEC's role in an
initiative on the Constitution is limited to the determination of the
sufficiency of the initiative petition and the call and supervision of a
plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it
attached a Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated
under Section 2, Article XVII of the 1987 Constitution.
149
 (2) COMELEC Resolution No. 2300 cannot substitute for
the required implementing law on the initiative to amend
the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in
that it does not have the required number of signatures.
(4) The petition seeks, in effect a revision of the
Constitution, which can be proposed only by Congress or
a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the
Motions for Intervention filed by the DIK and MABINI and by the IBP, as
well as the Motion for Leave to Intervene filed by LABAN; (b) admitting
the Amended Petition in Intervention of DIK and MABINI, and the
Petitions in Intervention of Senator Roco and of the IBP; (c) requiring the
respondents to file within a nonextendible period of five days their
Consolidated Comments on the aforesaid Petitions in Intervention; and
(d) requiring LABAN to file its Petition in Intervention within a
nonextendible period of three days from notice, and the respondents to
comment thereon within a nonextendible period of five days from receipt
of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the
following pivotal issues, which the Court formulated in light of the
allegations and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a
System of Initiative and Referendum and Appropriating
Funds Therefor, was intended to include or cover initiative
on amendments to the Constitution; and if so, whether
the Act, as worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300
(In re: Rules and Regulations Governing the Conduct of
Initiative on the Constitution, and Initiative and
Referendum on National and Local Laws) regarding the
conduct of initiative on amendments to the Constitution is
valid, considering the absence in the law of specific
provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national
and local officials, as proposed in the draft "Petition for
Initiative on the 1987 Constitution," would constitute a
revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has
jurisdiction over, a petition solely intended to obtain an
order (a) fixing the time and dates for signature
gathering; (b) instructing municipal election officers to
assist Delfin's movement and volunteers in establishing
signature stations; and (c) directing or causing the
publication of, inter alia, the unsigned proposed Petition
for Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take
cognizance of the petition when there is a pending case
before the COMELEC.
After hearing them on the issues, we required the parties to submit
simultaneously their respective memoranda within twenty days and
requested intervenor Senator Roco to submit copies of the deliberations
on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it
adopts the allegations and arguments in the main Petition. It further
submits that the COMELEC should have dismissed the Delfin Petition for
failure to state a sufficient cause of action and that the Commission's
failure or refusal to do so constituted grave abuse of discretion
amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both
the Journal and the Record of the House of Representatives relating to
the deliberations of House Bill No. 21505, as well as the transcripts of
150
stenographic notes on the proceedings of the Bicameral Conference
Committee, Committee on Suffrage and Electoral Reforms, of 6 June
1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated
Comments on the Petitions in Intervention of Senator Roco, DIK and
MABINI, and IBP. 23 The parties thereafter filed, in due time, their
separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this
special civil action.
For a more logical discussion of the formulated issues, we shall first take
up the fifth issue which appears to pose a prejudicial procedural question.
I jurisdiction or authority to entertain the petition. 26 The COMELEC made
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE
COMELEC OF THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no
serious attention to the fifth issue, i.e., whether it is proper for this Court
to take cognizance of this special civil action when there is a pending case
before the COMELEC. The petitioners provide an affirmative answer.
Thus:
28. The Comelec has no jurisdiction to take cognizance of
the petition filed by private respondent Delfin. This being
so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court,
Rule 65, Section 2, a petition for prohibition is the proper
remedy.
29. The writ of prohibition is an extraordinary judicial writ
issuing out of a court of superior jurisdiction and directed
to an inferior court, for the purpose of preventing the
inferior tribunal from usurping a jurisdiction with which it
is not legally vested. (People v. Vera, supra., p. 84). In this
case the writ is an urgent necessity, in view of the highly
divisive and adverse environmental consequences on the
body politic of the questioned Comelec order. The
consequent climate of legal confusion and political
instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional
law is threatened by the political ambitions of man, only
the Supreme Court
can save a nation in peril and uphold the paramount
majesty of the Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a motion
to dismiss the Delfin Petition on the ground that the COMELEC has no
no ruling thereon evidently because after having heard the arguments of
Delfin and the oppositors at the hearing on 12 December 1996, it required
them to submit within five days their memoranda or
oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it
practically gave due course to the Delfin Petition by ordering Delfin to
cause the publication of the petition, together with the attached Petition
for Initiative, the signature form, and the notice of hearing; and by setting
the case for hearing. The COMELEC's failure to act on Roco's motion to
dismiss and its insistence to hold on to the petition rendered ripe and
viable the instant petition under Section 2 of Rule 65 of the Rules of
Court, which provides:
Sec. 2. Petition for prohibition. Where the proceedings
of any tribunal, corporation, board, or person, whether
exercising functions judicial or ministerial, are without or
in excess of its or his jurisdiction, or with grave abuse of
discretion, and there is no appeal or any other plain,
speedy and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified
petition in the proper court alleging the facts with
certainty and praying that judgment be rendered
151
 commanding the defendant to desist from further
proceedings in the action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has
no jurisdiction over the Delfin Petition because the said petition is not
supported by the required minimum number of signatures of registered
voters. LABAN also asserts that the COMELEC gravely abused its
discretion in refusing to dismiss the Delfin Petition, which does not
contain the required number of signatures. In light of these claims, the
instant case may likewise be treated as a special civil action for certiorari
under Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his
Memorandum, this Court may brush aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v.
Guingona, Jr. 28
A party's standing before this Court is a procedural
technicality which it may, in the exercise of its discretion,
set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed
aside this technicality because the transcendental
importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if
we must, technicalities of procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE
ON AMENDMENTS TO THE CONSTITUTION, BUT IS,
UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number
of registered voters, of which every legislative district
must be represented by at least three per centum of the
registered voters therein. No amendment under this
section shall be authorized within five years following the
ratification of this Constitution nor oftener than once
every five years thereafter.
The Congress shall provide for the implementation of the exercise of this
right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a
member of the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot
operate. Thus, although this mode of amending the
Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is
dependent on congressional action.
Bluntly stated, the right of the people to directly propose
amendments to the Constitution through the system of initiative
would remain entombed in the cold niche of the Constitution until
Congress provides for its implementation. Stated otherwise,
while the Constitution has recognized or granted that right, the
people cannot exercise it if Congress, for whatever reason, does
not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft
Article on Amendment or Revision proposed by the Committee on
Amendments and Transitory Provisions of the 1986 Constitutional
Commission in its Committee Report No. 7 (Proposed Resolution No.
332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be
proposed:
152
 (a) by the National Assembly upon a vote of three-fourths
of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as
provided for in Article___ Section ___of the Constitution.
31
After several interpellations, but before the period of
amendments, the Committee submitted a new formulation of the
concept of initiative which it denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam
President. May we respectfully call
attention of the Members of the
Commission that pursuant to the mandate
given to us last night, we submitted this
afternoon a complete Committee Report
No. 7 which embodies the proposed
provision governing the matter of
initiative. This is now covered by Section 2
of the complete committee report. With
the permission of the Members, may I
quote Section 2:
The people may, after five years from the date of the last
plebiscite held, directly propose amendments to this
Constitution thru initiative upon petition of at least ten
percent of the registered voters.
This completes the blanks appearing in the original
Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out
Section 2 are left to the legislature. Thus:
FR. BERNAS. Madam President, just two
simple, clarificatory questions.
First, on Section 1 on the matter of
initiative upon petition of at least 10
percent, there are no details in the
provision on how to carry this out. Do we
understand, therefore, that we are leaving
this matter to the legislature?
MR. SUAREZ. That is right, Madam
President.
FR. BERNAS. And do we also understand,
therefore, that for as long as the legislature
does not pass the necessary implementing
law on this, this will not operate?
MR. SUAREZ. That matter was also taken
up during the committee hearing,
especially with respect to the budget
appropriations which would have to be
legislated so that the plebiscite could be
called. We deemed it best that this matter
be left to the legislature. The Gentleman is
right. In any event, as envisioned, no
amendment through the power of
initiative can be called until after five years
from the date of the ratification of this
Constitution. Therefore, the first
amendment that could be proposed
through the exercise of this initiative
power would be after five years. It is
reasonably expected that within that five-
year period, the National Assembly can
come up with the appropriate rules
governing the exercise of this power.
153
 FR. BERNAS. Since the matter is left to the
legislature the details on how this is to
be carried out is it possible that, in
effect, what will be presented to the
people for ratification is the work of the
legislature rather than of the people? Does
this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that
possibility because even the legislature
itself as a body could propose that
amendment, maybe individually or
collectively, if it fails to muster the three-
fourths vote in order to constitute itself as
a constituent assembly and submit that
proposal to the people for ratification
through the process of an initiative.
xxx xxx xxx
MS. AQUINO. Do I understand from the
sponsor that the intention in the proposal
is to vest constituent power in the people
to amend the Constitution?
MR. SUAREZ. That is absolutely correct,
Madam President.
MS. AQUINO. I fully concur with the
underlying precept of the proposal in
terms of institutionalizing popular
participation in the drafting of the
Constitution or in the amendment thereof,
but I would have a lot of difficulties in
terms of accepting the draft of Section 2,
as written. Would the sponsor agree with
me that in the hierarchy of legal mandate,
constituent power has primacy over all
other legal mandates?
MR. SUAREZ. The Commissioner is right,
Madam President.
MS. AQUINO. And would the sponsor
agree with me that in the hierarchy of
legal values, the Constitution is source of
all legal mandates and that therefore we
require a great deal of circumspection in
the drafting and in the amendments of the
Constitution?
MR. SUAREZ. That proposition is
nondebatable.
MS. AQUINO. Such that in order to
underscore the primacy of constituent
power we have a separate article in the
constitution that would specifically cover
the process and the modes of amending
the Constitution?
MR. SUAREZ. That is right, Madam
President.
MS. AQUINO. Therefore, is the sponsor
inclined, as the provisions are drafted
now, to again concede to the legislature the
process or the requirement of determining
the mechanics of amending the
Constitution by people's initiative?
MR. SUAREZ. The matter of implementing
this could very well be placed in the hands
of the National Assembly, not unless we
154
 can incorporate into this provision the
mechanics that would adequately cover all
the conceivable situations. 33
It was made clear during the interpellations that the aforementioned
Section 2 is limited to proposals to AMEND not to REVISE the
Constitution; thus:
MR. SUAREZ. . . . This proposal was
suggested on the theory that this matter
of initiative, which came about because of
the extraordinary developments this year,
has to be separated from the traditional
modes of amending the Constitution as
embodied in Section 1. The committee
members felt that this system of initiative
should not extend to the revision of the
entire Constitution, so we removed it from
the operation of Section 1 of the proposed
Article on Amendment or Revision. 34
xxx xxx xxx
MS. AQUINO. In which case, I am seriously
bothered by providing this process of
initiative as a separate section in the
Article on Amendment. Would the
sponsor be amenable to accepting an
amendment in terms of realigning Section
2 as another subparagraph (c) of Section 1,
instead of setting it up as another
separate section as if it were a self-
executing provision?
MR. SUAREZ. We would be amenable
except that, as we clarified a while ago,
this process of initiative is limited to the
matter of amendment and should not
expand into a revision which contemplates
a total overhaul of the Constitution. That
was the sense that was conveyed by the
Committee.
MS. AQUINO. In other words, the
Committee was attempting to distinguish
the coverage of modes (a) and (b) in
Section 1 to include the process of
revision; whereas the process of initiation
to amend, which is given to the public,
would only apply to amendments?
MR. SUAREZ. That is right. Those were the
terms envisioned in the Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by
then Commissioner Hilario G. Davide, Jr., which the Committee accepted.
Thus:
MR. DAVIDE. Thank you Madam President.
I propose to substitute the entire Section
2 with the following:
MR. DAVIDE. Madam President, I have
modified the proposed amendment after
taking into account the modifications
submitted by the sponsor himself and the
honorable Commissioners Guingona,
Monsod, Rama, Ople, de los Reyes and
Romulo. The modified amendment in
substitution of the proposed Section 2 will
now read as follows: "SECTION 2.
AMENDMENTS TO THIS CONSTITUTION
MAY LIKEWISE BE DIRECTLY PROPOSED
BY THE PEOPLE THROUGH INITIATIVE
UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER Of
155
 REGISTERED VOTERS, OF WHICH EVERY legislature from asking another body to
LEGISLATIVE DISTRICT MUST BE set the proposition in proper form.
REPRESENTED BY AT LEAST THREE
PERCENT OF THE REGISTERED VOTERS MR. DAVIDE. The Commissioner is correct.
THEREOF. NO AMENDMENT UNDER THIS In other words, the implementation of this
SECTION SHALL BE AUTHORIZED WITHIN particular right would be subject to
FIVE YEARS FOLLOWING THE legislation, provided the legislature cannot
RATIFICATION OF THIS CONSTITUTION determine anymore the percentage of the
NOR OFTENER THAN ONCE EVERY FIVE requirement.
YEARS THEREAFTER.
MR. ROMULO. But the procedures,
THE NATIONAL ASSEMBLY SHALL BY LAW including the determination of the proper
PROVIDE FOR THE IMPLEMENTATION OF form for submission to the people, may be
THE EXERCISE OF THIS RIGHT. subject to legislation.

MR. SUAREZ. Madam President, MR. DAVIDE. As long as it will not destroy
considering that the proposed the substantive right to initiate. In other
amendment is reflective of the sense words, none of the procedures to be
contained in Section 2 of our completed proposed by the legislative body must
Committee Report No. 7, we accept the diminish or impair the right conceded
proposed amendment. 36 here.

The interpellations which ensued on the proposed modified amendment MR. ROMULO. In that provision of the
to Section 2 clearly showed that it was a legislative act which must Constitution can the procedures which I
implement the exercise of the right. Thus: have discussed be legislated?

MR. ROMULO. Under Commissioner MR. DAVIDE. Yes. 37

Davide's amendment, is it possible for the
legislature to set forth certain procedures Commissioner Davide also reaffirmed that his modified amendment
to carry out the initiative. . .? strictly confines initiative to AMENDMENTS to NOT REVISION of the
Constitution. Thus:
MR. DAVIDE. It can.
MR. DAVIDE. With pleasure, Madam
xxx xxx xxx President.

MR. ROMULO. But the Commissioner's MR. MAAMBONG. My first question:

amendment does not prevent the Commissioner Davide's proposed

156
 amendment on line 1 refers to
"amendment." Does it not cover the word
"revision" as defined by Commissioner
Padilla when he made the distinction
between the words "amendments" and
"revision"?
MR. DAVIDE. No, it does not, because
"amendments" and "revision" should be
covered by Section 1. So insofar as
initiative is concerned, it can only relate to
"amendments" not "revision." 38
Commissioner Davide further emphasized that the process of proposing
amendments through initiative must be more rigorous and difficult than
the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made
that under this proposal, what is involved
is an amendment to the Constitution. To
amend a Constitution would ordinarily
require a proposal by the National
Assembly by a vote of three-fourths; and
to call a constitutional convention would
require a higher number. Moreover, just
to submit the issue of calling a
constitutional convention, a majority of
the National Assembly is required, the
import being that the process of
amendment must be made more rigorous
and difficult than probably initiating an
ordinary legislation or putting an end to a
law proposed by the National Assembly by
way of a referendum. I cannot agree to
reducing the requirement approved by the
Committee on the Legislative because it
would require another voting by the
Committee, and the voting as precisely
based on a requirement of 10 percent.
Perhaps, I might present such a proposal,
by way of an amendment, when the
Commission shall take up the Article on
the Legislative or on the National
Assembly on plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to
amendments, and the final version, which the Commission approved by a
vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President.
Section 2, as amended, reads as follows:
"AMENDMENT TO THIS CONSTITUTION
MAY LIKEWISE BE DIRECTLY PROPOSED
BY THE PEOPLE THROUGH INITIATIVE
UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER OF
REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE
PERCENT OF THE REGISTERED VOTERS
THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN
FIVE YEARS FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION
NOR OFTENER THAN ONCE EVERY FIVE
YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW
PROVIDE
FOR THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT. 40
The entire proposed Article on Amendments or Revisions was
approved on second reading on 9 July 1986. 41 Thereafter, upon
his motion for reconsideration, Commissioner Gascon was
allowed to introduce an amendment to Section 2 which,
157
 nevertheless, was withdrawn. In view thereof, the Article was
again approved on Second and Third Readings on 1 August 1986.
42
However, the Committee on Style recommended that the approved
Section 2 be amended by changing "percent" to "per centum" and
"thereof" to "therein" and deleting the phrase "by law" in the second
paragraph so that said paragraph reads: The Congress 43 shall provide for
the implementation of the exercise of this right. 44 This amendment was
approved and is the text of the present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on
the Constitution under Section 2 of Article XVII of the Constitution is not
self-executory.
Has Congress "provided" for the implementation of the exercise of this
right? Those who answer the question in the affirmative, like the private
respondents and intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the
exercise of the right than through the passage of a statute or legislative
act. This is the essence or rationale of the last minute amendment by the
Constitutional Commission to substitute the last paragraph of Section 2
of Article XVII then reading:
The Congress 45 shall by law provide for the
implementation of the exercise of this right.
with
The Congress shall provide for the implementation of the
exercise of this right.
This substitute amendment was an investiture on Congress of a
power to provide for the rules implementing the exercise of the
right. The "rules" means "the details on how [the right] is to be
carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to cover
initiative to propose amendments to the Constitution. The Act is a
consolidation of House Bill No. 21505 and Senate Bill No. 17. The former
was prepared by the Committee on Suffrage and Electoral Reforms of the
House of Representatives on the basis of two House Bills referred to it,
viz., (a) House Bill No. 497, 47 which dealt with the initiative and
referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No.
988, 48 which dealt with the subject matter of House Bill No. 497, as well
as with initiative and referendum under Section 3 of Article X (Local
Government) and initiative provided for in Section 2 of Article XVII of the
Constitution. Senate Bill No. 17 49 solely dealt with initiative and
referendum concerning ordinances or resolutions of local government
units. The Bicameral Conference Committee consolidated Senate Bill No.
17 and House Bill No. 21505 into a draft bill, which was subsequently
approved on 8 June 1989 by the Senate 50 and by the House of
Representatives. 51 This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of
Congress to "provide for the implementation of the exercise of the
right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2
of the Act does not suggest an initiative on amendments to the
Constitution. The said section reads:
Sec. 2. Statement and Policy. The power of the people
under a system of initiative and referendum to directly
propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by
any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized
and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed
afterthought. That word is neither germane nor relevant to said
158
 section, which exclusively relates to initiative and referendum on
national laws and local laws, ordinances, and resolutions. That
section is silent as to amendments on the Constitution. As pointed
out earlier, initiative on the Constitution is confined only to
proposals to AMEND. The people are not accorded the power to
"directly propose, enact, approve, or reject, in whole or in part, the
Constitution" through the system of initiative. They can only do so
with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this
section was lifted from Section 1 of Senate Bill No. 17, which solely
referred to a statement of policy on local initiative and referendum and
appropriately used the phrases "propose and enact," "approve or reject"
and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act defines
initiative on amendments to the Constitution and mentions it as one of
the three systems of initiative, and that Section 5 (Requirements) restates
the constitutional requirements as to the percentage of the registered
voters who must submit the proposal. But unlike in the case of the other
systems of initiative, the Act does not provide for the contents of a
petition for initiative on the Constitution. Section 5, paragraph (c)
requires, among other things, statement of the proposed law sought to be
enacted, approved or rejected, amended or repealed, as the case may be. It
does not include, as among the contents of the petition, the provisions of
the Constitution sought to be amended, in the case of initiative on the
Constitution. Said paragraph (c) reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be
enacted, approved or rejected, amended or repealed, as
the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than
one hundred (100) words which shall be legibly written or
printed at the top of every page of the petition. (Emphasis
supplied).
The use of the clause "proposed laws sought to be enacted,
approved or rejected, amended or repealed" only strengthens the
conclusion that Section 2, quoted earlier, excludes initiative on
amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and
Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle
III), no subtitle is provided for initiative on the Constitution. This
conspicuous silence as to the latter simply means that the main thrust of
the Act is initiative and referendum on national and local laws. If Congress
intended R.A. No. 6735 to fully provide for the implementation of the
initiative on amendments to the Constitution, it could have provided for a
subtitle therefor, considering that in the order of things, the primacy of
interest, or hierarchy of values, the right of the people to directly propose
amendments to the Constitution is far more important than the initiative
on national and local laws.
We cannot accept the argument that the initiative on amendments to the
Constitution is subsumed under the subtitle on National Initiative and
Referendum because it is national in scope. Our reading of Subtitle II
(National Initiative and Referendum) and Subtitle III (Local Initiative and
Referendum) leaves no room for doubt that the classification is not based
on the scope of the initiative involved, but on its nature and character. It is
"national initiative," if what is proposed to be adopted or enacted is a
national law, or a law which only Congress can pass. It is "local initiative"
if what is proposed to be adopted or enacted is a law, ordinance, or
resolution which only the legislative bodies of the governments of the
autonomous regions, provinces, cities, municipalities, and barangays can
pass. This classification of initiative into national and local is actually based
159
on Section 3 of the Act, which we quote for emphasis and clearer
understanding:
Sec. 3. Definition of terms
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition
proposing amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition
proposing to enact a national legislation; and
a.3 Initiative on local legislation which refers to a petition
proposing to enact a regional, provincial, city, municipal,
or barangay law, resolution or ordinance. (Emphasis
supplied).
Hence, to complete the classification under subtitles there should have
been a subtitle on initiative on amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not
accurate. Provisions not germane to the subtitle on National Initiative and
Referendum are placed therein, like (1) paragraphs (b) and (c) of Section
9, which reads:
(b) The proposition in an initiative on the Constitution
approved by the majority of the votes cast in the
plebiscite shall become effective as to the day of the
plebiscite.
(c) A national or local initiative proposition approved by
majority of the votes cast in an election called for the
purpose shall become effective fifteen (15) days after
certification and proclamation of the Commission.
(Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect
initiative with the legislative bodies of local governments; thus:
Sec. 11. Indirect Initiative. Any duly accredited people's
organization, as defined by law, may file a petition for
indirect initiative with the House of Representatives, and
other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the
COMELEC on the findings of sufficiency or insufficiency of the
petition for initiative or referendum, which could be petitions for
both national and local initiative and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle
III on Local Initiative and Referendum is misplaced, 54 since the provision
therein applies to both national and local initiative and referendum. It
reads:
Sec. 18. Authority of Courts. Nothing in this Act shall
prevent or preclude the proper courts from declaring null
and void any proposition approved pursuant to this Act
for violation of the Constitution or want of capacity of the
local legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in
providing for the details in the implementation of initiative and
referendum on national and local legislation thereby giving them special
attention, it failed, rather intentionally, to do so on the system of
initiative on amendments to the Constitution. Anent the initiative on
national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and
the contents of the petition;
160
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required
number of votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or
in a newspaper of general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition. 55
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of
registered voters for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon,
and the invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in
the local government unit concerned as to whether the required number
of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the
proposition to the registered voters for their approval, which must be
within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution,
R.A. No. 6735, in all of its twenty-three sections, merely (a) mentions, the
word "Constitution" in Section 2; (b) defines "initiative on the
Constitution" and includes it in the enumeration of the three systems of
initiative in Section 3; (c) speaks of "plebiscite" as the process by which
the proposition in an initiative on the Constitution may be approved or
rejected by the people; (d) reiterates the constitutional requirements as
to the number of voters who should sign the petition; and (e) provides
for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or
the paramount system of initiative. RA. No. 6735 thus delivered a
humiliating blow to the system of initiative on amendments to the
Constitution by merely paying it a reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is
incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned. Its
lacunae on this substantive matter are fatal and cannot be cured by
"empowering" the COMELEC "to promulgate such rules and regulations
as may be necessary to carry out the purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as
expressed in a Latin maxim: potestas delegata non delegari potest. 59 The
recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of
Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2)
of Article VI of the Constitution;
161
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-
judicial functions, to promulgate rules and regulations is a form of
delegation of legislative authority under no. 5 above. However, in every
case of permissible delegation, there must be a showing that the
delegation itself is valid. It is valid only if the law (a) is complete in itself,
setting forth therein the policy to be executed, carried out, or
implemented by the delegate; and (b) fixes a standard the limits of
which are sufficiently determinate and determinable to which the
delegate must conform in the performance of his functions. 61 A
sufficient standard is one which defines legislative policy, marks its limits,
maps out its boundaries and specifies the public agency to apply it. It
indicates the circumstances under which the legislative command is to be
effected. 62
Insofar as initiative to propose amendments to the Constitution is
concerned, R.A. No. 6735 miserably failed to satisfy both requirements in
subordinate legislation. The delegation of the power to the COMELEC is
then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES
RULES AND REGULATIONS ON THE CONDUCT OF INITIATIVE ON
AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to
directly propose amendments to the Constitution through the system of
initiative. It does not have that power under R.A. No. 6735. Reliance on
the COMELEC's power under Section 2(1) of Article IX-C of the
Constitution is misplaced, for the laws and regulations referred to therein
are those promulgated by the COMELEC under (a) Section 3 of Article IX-C
of the Constitution, or (b) a law where subordinate legislation is
authorized and which satisfies the "completeness" and the "sufficient
standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance
with the power of Congress to implement the right to initiate
constitutional amendments, or that it has validly vested upon the
COMELEC the power of subordinate legislation and that COMELEC
Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or
with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A.
No. 6735, a petition for initiative on the Constitution must be signed by at
least 12% of the total number of registered voters of which every
legislative district is represented by at least 3% of the registered voters
therein. The Delfin Petition does not contain signatures of the required
number of voters. Delfin himself admits that he has not yet gathered
signatures and that the purpose of his petition is primarily to obtain
assistance in his drive to gather signatures. Without the required
signatures, the petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after
its filing. The petition then is the initiatory pleading. Nothing before its
filing is cognizable by the COMELEC, sitting en banc. The only
participation of the COMELEC or its personnel before the filing of such
petition are (1) to prescribe the form of the petition; 63 (2) to issue
through its Election Records and Statistics Office a certificate on the total
number of registered voters in each legislative district; 64 (3) to assist,
through its election registrars, in the establishment of signature stations;
65 and (4) to verify, through its election registrars, the signatures on the
basis of the registry list of voters, voters' affidavits, and voters'
identification cards used in the immediately preceding election. 66
162
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735
and COMELEC Resolution No. 2300, it cannot be entertained or given
cognizance of by the COMELEC. The respondent Commission must have
known that the petition does not fall under any of the actions or
proceedings under the COMELEC Rules of Procedure or under Resolution
No. 2300, for which reason it did not assign to the petition a docket
number. Hence, the said petition was merely entered as UND, meaning,
undocketed. That petition was nothing more than a mere scrap of paper,
which should not have been dignified by the Order of 6 December 1996,
the hearing on 12 December 1996, and the order directing Delfin and the
oppositors to file their memoranda or oppositions. In so dignifying it, the
COMELEC acted without jurisdiction or with grave abuse of discretion and
merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the
proposal to lift the term limits of elective national and local officials is an
amendment to, and not a revision of, the Constitution is rendered
unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of
the system.
We feel, however, that the system of initiative to propose amendments
to the Constitution should no longer be kept in the cold; it should be
given flesh and blood, energy and strength. Congress should not tarry
any longer in complying with the constitutional mandate to provide for
the implementation of the right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative
on amendments to the Constitution, and to have failed to provide
sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission
on Elections prescribing rules and regulations on the conduct of initiative
or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the
DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made
permanent as against the Commission on Elections, but is LIFTED as
against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and
Torres, Jr., JJ., concur.
Padilla, J., took no part.
Separate Opinions
PUNO, J., concurring and dissenting:
I join the ground-breaking ponencia of our esteemed colleague, Mr.
Justice Davide insofar as it orders the COMELEC to dismiss the Delfin
petition. I regret, however, I cannot share the view that R.A. No. 5735 and
163
COMELEC Resolution No. 2300 are legally defective and cannot
implement the people's initiative to amend the Constitution. I likewise
submit that the petition with respect to the Pedrosas has no leg to stand
on and should be dismissed. With due respect:
I 2. While under the parliamentary system of the 1973
First, I submit that R.A. No. 6735 sufficiently implements the right of the
people to initiate amendments to the Constitution thru initiative. Our
effort to discover the meaning of R.A. No. 6735 should start with the
search of the intent of our lawmakers. A knowledge of this intent is
critical for the intent of the legislature is the law and the controlling
factor in its interpretation.1 Stated otherwise, intent is the essence of the
law, the spirit which gives life to its enactment.2
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was
intended to cover initiative to propose amendments to the Constitution."
It ought to be so for this intent is crystal clear from the history of the law
which was a consolidation of House Bill No. 215053 and Senate Bill No.
17.4 Senate Bill No. 17 was entitled "An Act Providing for a System of
Initiative and Referendum and the Exception Therefrom, Whereby People
in Local Government Units Can Directly Propose and Enact Resolutions
and Ordinances or Approve or Reject any Ordinance or Resolution Passed
by the Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not
include people's initiative to propose amendments to the Constitution. In
checkered contrast, House Bill No. 21505 5 expressly included people's
initiative to amend the Constitution. Congressman (now Senator) Raul
Roco emphasized in his sponsorship remarks:6
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ROCO
At the outset, Mr. Roco provided the following
backgrounder on the constitutional basis of the proposed
measure.
1. As cited in Vera vs. Avelino (1946), the presidential
system which was introduced by the 1935 Constitution
saw the application of the principle of separation of
powers.
Constitution the principle remained applicable, the 1981
amendments to the Constitution of 1973 ensured
presidential dominance over the Batasang Pambansa.
Constitutional history then saw the shifting and sharing of
legislative powers between the Legislature and the
Executive departments. Transcending changes in the
exercise of legislative power is the declaration in the
Philippine Constitution that the Philippines is a republican
state where sovereignty resides in the people and all
sovereignty emanates from them.
3. Under the 1987 Constitution, the lawmaking power is
still preserved in Congress; however, to institutionalize
direct action of the people as exemplified in the 1986
Revolution, the Constitution recognizes the power of the
people, through the system of initiative and referendum.
As cited in Section 1, Article VI of the 1987 Constitution,
Congress does not have plenary powers since reserve
powers are given to the people expressly. Section 32 of
the same Article mandates Congress to pass at the
soonest possible time, a bill on referendum and initiative,
and to share its legislative powers with the people.
Section 2, Article XVII of the 1987 Constitution, on the
other hand, vests in the people the power to directly
propose amendments to the Constitution through
initiative, upon petition of at least 12 percent of the total
number of registered voters.
164
Stating that House Bill No. 21505 is the Committee's
response to the duty imposed on Congress to implement
the exercise by the people of the right to initiative and
referendum, Mr. Roco recalled the beginnings of the
system of initiative and referendum under Philippine Law.
He cited Section 99 of the Local Government Code which
vests in the barangay assembly the power to initiate
legislative processes, decide the holding of plebiscite and
hear reports of the Sangguniang Barangay, all of which
are variations of the power of initiative and referendum.
He added that the holding of barangay plebiscites and
referendum are likewise provided in Sections 100 and 101
of the same Code.
Thereupon, for the sake of brevity, Mr. Roco moved that
pertinent quotation on the subject which he will later
submit to the Secretary of the House be incorporated as
part of his sponsorship speech.
He then cited examples of initiative and referendum
similar to those contained in the instant Bill among which
are the constitutions of states in the United States which
recognize the right of registered voters to initiate the
enactment of any statute or to project any existing law or
parts thereof in a referendum. These states, he said, are
Alaska, Alabama, Montana, Massachusets, Dakota,
Oklahoma, Oregon, and practically all other states.
Mr. Roco explained that in certain American states, the
kind of laws to which initiative and referendum apply is
also without limitation, except for emergency measures,
which are likewise incorporated in House Bill No. 21505.
He added that the procedure provided by the Bill from the
filing of the petition, the requirements of a certain
percentage of supporters to present a proposition, to the
submission to electors are substantially similar to the
provisions in American laws. Although an infant in
Philippine political structure, the system of initiative and
referendum, he said, is a tried and tested system in other
jurisdictions, and the Bill is patterned after American
experience.
He further explained that the bill has only 12 sections, and
recalled that the Constitutional Commissioners saw the
system of the initiative and referendum as an instrument
which can be used should the legislature show itself to be
indifferent to the needs of the people. This is the reason,
he claimed, why now is an opportune time to pass the Bill
even as he noted the felt necessity of the times to pass
laws which are necessary to safeguard individual rights
and liberties.
At this juncture Mr. Roco explained the process of
initiative and referendum as advocated in House Bill No.
21505. He stated that:
1. Initiative means that the people, on their own political
judgment, submit a Bill for the consideration of the
general electorate.
2. The instant Bill provides three kinds of initiative,
namely; the initiative to amend the Constitution once
every five years; the initiative to amend statutes approved
by Congress; and the initiative to amend local ordinances.
3. The instant Bill gives a definite procedure and allows
the Commission on Elections (COMELEC) to define rules
and regulations on the power of initiative.
4. Referendum means that the legislators seek the
consent of the people on measures that they have
approved.
5. Under Section 4 of the Bill the people can initiate a
referendum which is a mode of plebiscite by presenting a
165
 petition therefor, but under certain limitations, such as
the signing of said petition by at least 10 percent of the
total of registered voters at which every legislative district
is represented by at least three percent of the registered
voters thereof. Within 30 days after receipt of the
petition, the COMELEC shall determine the sufficiency of
the petition, publish the same, and set the date of the
referendum within 45 to 90-day period.
6. When the matter under referendum or initiative is
approved by the required number of votes, it shall
become effective 15 days following the completion of its
publication in the Official Gazette.
In concluding his sponsorship remarks, Mr. Roco stressed
that the Members cannot ignore the people's call for
initiative and referendum and urged the Body to approve
House Bill No. 21505.
At this juncture, Mr. Roco also requested that the
prepared text of his speech together with the footnotes
be reproduced as part of the Congressional Records.
The same sentiment as to the bill's intent to implement people's
initiative to amend the Constitution was stressed by then
Congressman (now Secretary of Agriculture) Salvador Escudero
III in his sponsorship remarks, viz:7
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ESCUDERO
Mr. Escudero first pointed out that the people have been
clamoring for a truly popular democracy ever since,
especially in the so-called parliament of the streets. A
substantial segment of the population feels, he said, that
the form of democracy is there, but not the reality or
substance of it because of the increasingly elitist
approach of their representatives to the country's
problem.
Whereupon, Mr. Escudero pointed out that the
Constitution has provided a means whereby the people
can exercise the reserved power of initiative to propose
amendments to the Constitution, and requested that
Sections 1 and 32, Article VI; Section 3, Article X; and
Section 2, Article XVII of the Constitution be made part of
his sponsorship remarks.
Mr. Escudero also stressed that an implementing law is
needed for the aforecited Constitutional provisions. While
the enactment of the Bill will give way to strong
competition among cause-oriented and sectoral groups,
he continued, it will hasten the politization of the
citizenry, aid the government in forming an enlightened
public opinion, and produce more responsive legislation.
The passage of the Bill will also give street
parliamentarians the opportunity to articulate their ideas
in a democratic forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped for the
early approval of the Bill so that it can be initially used for
the Agrarian Reform Law. He said that the passage of
House Bill No. 21505 will show that the Members can set
aside their personal and political consideration for the
greater good of the people.
The disagreeing provisions in Senate Bill No. 17 and House Bill No.
21505 were threshed out in a Bicameral Conference Committee.8
In the meeting of the Committee on June 6, 1989,9 the members
agreed that the two (2) bills should be consolidated and that the
consolidated version should include people's initiative to amend
the Constitution as contemplated by House Bill No. 21505. The
transcript of the meeting states:
166
xxx xxx xxx
CHAIRMAN GONZALES. But at any rate, as
I have said, because this is new in our
political system, the Senate decided on a
more cautious approach and limiting it
only to the local government units
because even with that stage where . . . at
least this has been quite popular, ano? It
has been attempted on a national basis.
Alright. There has not been a single
attempt. Now, so, kami limitado doon.
And, second, we consider also that it is
only fair that the local legislative body
should be given a chance to adopt the
legislation bill proposed, right? Iyong
sinasabing indirect system of initiative. If
after all, the local legislative assembly or
body is willing to adopt it in full or in toto,
there ought to be any reason for initiative,
ano for initiative. And, number 3, we feel
that there should be some limitation on
the frequency with which it should be
applied. Number 4, na the people, thru
initiative, cannot enact any ordinance that
is beyond the scope of authority of the
local legislative body, otherwise, my God,
mag-aassume sila ng power that is
broader and greater than the grant of
legislative power to the Sanggunians. And
Number 5, because of that, then a
proposition which has been the result of a
successful initiative can only carry the
force and effect of an ordinance and
therefore that should not deprive the
court of its jurisdiction to declare it null
and void for want of authority. Ha, di ba? I
mean it is beyond powers of local
government units to enact. Iyon ang main
essence namin, so we concentrated on
that. And that is why . . . so ang sa inyo
naman includes iyon sa Constitution,
amendment to the Constitution eh . . .
national laws. Sa amin, if you insist on
that, alright, although we feel na it will in
effect become a dead statute. Alright, and
we can agree, we can agree. So ang
mangyayari dito, and magiging basic nito,
let us not discuss anymore kung alin and
magiging basic bill, ano, whether it is the
Senate Bill or whether it is the House bill.
Logically it should be ours sapagkat una
iyong sa amin eh. It is one of the first bills
approved by the Senate kaya ang number
niyan, makikita mo, 17, eh. Huwag na
nating pagusapan. Now, if you insist, really
iyong features ng national at saka
constitutional, okay. ____ gagawin na
natin na consolidation of both bills.
HON. ROCO. Yes, we shall consolidate.
CHAIRMAN GONZALES. Consolidation of
the Senate and House Bill No. so and so. 10
When the consolidated bill was presented to the House for
approval, then Congressman Roco upon interpellation by
Congressman Rodolfo Albano, again confirmed that it covered
people's initiative to amend the Constitution. The record of the
House Representative states: 11
xxx xxx xxx
THE SPEAKER PRO TEMPORE. The
Gentleman from Camarines Sur is
recognized.
167
MR. ROCO. On the Conference Committee
Report on the disagreeing provisions
between Senate Bill No. 21505 which
refers to the system providing for the
initiative and referendum, fundamentally,
Mr. Speaker, we consolidated the Senate
and the House versions, so both versions
are totally intact in the bill. The Senators
ironically provided for local initiative and
referendum and the House
Representatives correctly provided for
initiative and referendum on the
Constitution and on national legislation.
I move that we approve the consolidated
bill.
MR. ALBANO. Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the
pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished
sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. The
Gentlemen will please proceed.
MR. ALBANO. I heard the sponsor say that
the only difference in the two bills was
that in the Senate version there was a
provision for local initiative and
referendum, whereas the House version
has none.
MR. ROCO. In fact, the Senate version
provide purely for local initiative and
referendum, whereas in the House
version, we provided purely for national
and constitutional legislation.
MR. ALBANO. Is it our understanding
therefore, that the two provisions were
incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a
complete initiative and referendum both
in the constitutional amendment and
national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as
municipal resolutions?
MR. ROCO. Down to barangay, Mr.
Speaker.
MR. ALBANO. And this initiative and
referendum is in consonance with the
provision of the Constitution whereby it
mandates this Congress to enact the
enabling law, so that we shall have a
system which can be done every five
years. Is it five years in the provision of the
Constitution?
MR. ROCO. That is correct, Mr. Speaker.
For constitutional amendments in the 1987
Constitution, it is every five years.
168
 MR. ALBANO. For every five years, Mr.
Speaker?
MR. ROCO. Within five years, we cannot
have multiple initiatives and referenda.
MR. ALBANO. Therefore, basically, there
was no substantial difference between the
two versions?
MR. ROCO. The gaps in our bill were filled
by the Senate which, as I said earlier,
ironically was about local, provincial and
municipal legislation.
MR. ALBANO. And the two bills were
consolidated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. Thank you, Mr. Speaker.
APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)
THE SPEAKER PRO TEMPORE. There was a motion to
approve this consolidated bill on Senate Bill No. 17 and
House Bill No. 21505.
Is there any objection? (Silence. The Chair hears none; the
motion is approved.
Since it is crystalline that the intent of R.A. No. 6735 is to
implement the people's initiative to amend the Constitution, it is
our bounden duty to interpret the law as it was intended by the
legislature. We have ruled that once intent is ascertained, it must
be enforced even if it may not be consistent with the strict letter
of the law and this ruling is as old as the mountain. We have also
held that where a law is susceptible of more than one
interpretation, that interpretation which will most tend to
effectuate the manifest intent of the legislature will be adopted.
12
The text of R.A. No. 6735 should therefore be reasonably construed to
effectuate its intent to implement the people's initiative to amend the
Constitution. To be sure, we need not torture the text of said law to reach
the conclusion that it implements people's initiative to amend the
Constitution. R.A. No. 6735 is replete with references to this prerogative
of the people.
First, the policy statement declares:
Sec. 2. Statement of Policy. The power of the people
under a system of initiative and referendum to directly
propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by
any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized
and guaranteed. (emphasis supplied)
Second, the law defines "initiative" as "the power of the people to
propose amendments to the constitution or to propose and enact
legislations through an election called for the purpose," and "plebiscite"
as "the electoral process by which an initiative on the Constitution is
approved or rejected by the people.
Third, the law provides the requirements for a petition for initiative to
amend the Constitution. Section 5(b) states that "(a) petition for an
initiative on the 1987 Constitution must have at least twelve per centum
(12%) of the total number of registered voters as signatories, of which
every legislative district must be represented by at least three per centum
(3%) of the registered voters therein." It also states that "(i)nitiative on
the Constitution may be exercised only after five (5) years from the
169
ratification of the 1987 Constitution and only once every five (5) years
thereafter.
Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section
9(b) states that "(t)he proposition in an initiative on the Constitution
approved by a majority of the votes cast in the plebiscite shall become
effective as to the day of the plebiscite.
It is unfortunate that the majority decision resorts to a strained
interpretation of R.A. No. 6735 to defeat its intent which it itself concedes
is to implement people's initiative to propose amendments to the
Constitution. Thus, it laments that the word "Constitution" is neither
germane nor relevant to the policy thrust of section 2 and that the
statute's subtitling is not accurate. These lapses are to be expected for
laws are not always written in impeccable English. Rightly, the
Constitution does not require our legislators to be word-smiths with the
ability to write bills with poetic commas like Jose Garcia Villa or in lyrical
prose like Winston Churchill. But it has always been our good policy not
to refuse to effectuate the intent of a law on the ground that it is badly
written. As the distinguished Vicente Francisco 13 reminds us: "Many laws
contain words which have not been used accurately. But the use of inapt
or inaccurate language or words, will not vitiate the statute if the
legislative intention can be ascertained. The same is equally true with
reference to awkward, slovenly, or ungrammatical expressions, that is,
such expressions and words will be construed as carrying the meaning
the legislature intended that they bear, although such a construction
necessitates a departure from the literal meaning of the words used.
In the same vein, the argument that R.A. No. 7535 does not include
people's initiative to amend the Constitution simply because it lacks a
sub-title on the subject should be given the weight of helium. Again, the
hoary rule in statutory construction is that headings prefixed to titles,
chapters and sections of a statute may be consulted in aid of
interpretation, but inferences drawn therefrom are entitled to very little
weight, and they can never control the plain terms of the enacting
clauses. 14
All said, it is difficult to agree with the majority decision that refuses to
enforce the manifest intent or spirit of R.A. No. 6735 to implement the
people's initiative to amend the Constitution. It blatantly disregards the
rule cast in concrete that the letter of the law must yield to its spirit for
the letter of the law is its body but its spirit is its soul. 15
II
COMELEC Resolution No. 2300, 16 promulgated under the stewardship of
Commissioner Haydee Yorac, then its Acting Chairman, spelled out the
procedure on how to exercise the people's initiative to amend the
Constitution. This is in accord with the delegated power granted by
section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The
Commission is hereby empowered to promulgate such rules and
regulations as may be necessary to carry out the purposes of this Act." By
no means can this delegation of power be assailed as infirmed. In the
benchmark case of Pelaez v. Auditor General, 17 this Court, thru former
Chief Justice Roberto Concepcion laid down the test to determine
whether there is undue delegation of legislative power, viz:
xxx xxx xxx
Although Congress may delegate to another branch of
the Government the power to fill details in the execution,
enforcement or administration of a law, it is essential, to
forestall a violation of the principle of separation of
powers, that said law: (a) be complete in itself it must
set forth therein the policy to be executed, carried out or
implemented by the delegate and (b) to fix standard
the limits of which are sufficiently determinate or
determinable to which the delegate must conform in
the performance of his functions. Indeed, without a
statutory declaration of policy, which is the essence of
every law, and, without the aforementioned standard,
there would be no means to determine, with reasonable
certainty, whether the delegate has acted within or
beyond the scope of his authority. Hence, he could
thereby arrogate upon himself the power, not only to
170
 make the law, but, also and this is worse to unmake
it, by adopting measures inconsistent with the end sought
to be attained by the Act of Congress, thus nullifying the
principle of separation of powers and the system of
checks and balances, and, consequently, undermining the
very foundation of our republican system.
Section 68 of the Revised Administrative Code does not
meet these well-settled requirements for a valid
delegation of the power to fix the details in the
enforcement of a law. It does not enunciate any policy to
be carried out or implemented by the President. Neither
does it give a standard sufficiently precise to avoid the evil
effects above referred to.
6735, it cannot be said that Congress totally transferred its power to
enact the law implementing people's initiative to COMELEC. A close look
at COMELEC Resolution No. 2300 will show that it merely provided the
procedure to effectuate the policy of R.A. No. 6735 giving life to the
people's initiative to amend the Constitution. The debates 26 in the
Constitutional Commission make it clear that the rules of procedure to
enforce the people's initiative can be delegated, thus:
MR. ROMULO. Under Commissioner
Davide's amendment, it is possible for the
legislature to set forth certain procedures
to carry out the initiative. . . ?
MR. DAVIDE. It can.

R.A. No. 6735 sufficiently states the policy and the standards to guide the xxx xxx xxx
COMELEC in promulgating the law's implementing rules and regulations
of the law. As aforestated, section 2 spells out the policy of the law; viz: MR. ROMULO. But the Commissioner's
"The power of the people under a system of initiative and referendum to amendment does not prevent the
directly propose, enact, approve or reject, in whole or in part, the legislature from asking another body to
Constitution, laws, ordinances, or resolutions passed by any legislative set the proposition in proper form.
body upon compliance with the requirements of this Act is hereby
affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 MR. DAVIDE. The Commissioner is correct.
are the standards to canalize the delegated power to the COMELEC to In other words, the implementation of this
promulgate rules and regulations from overflowing. Thus, the law states particular right would be subject to
the number of signatures necessary to start a people's initiative, 18 legislation, provided the legislature cannot
directs how initiative proceeding is commenced, 19 what the COMELEC determine anymore the percentage of the
should do upon filing of the petition for initiative, 20 how a proposition is requirement.
approved, 21 when a plebiscite may be held, 22 when the amendment
takes effect 23 and what matters may not be the subject of any initiative. MR. DAVIDE. As long as it will not destroy
24 By any measure, these standards are adequate. the substantive right to initiate. In other
words, none of the procedures to be
Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient proposed by the legislative body must
standard is intended to map out the boundaries of the delegates' diminish or impair the right conceded
authority by defining the legislative policy and indicating the here.
circumstances under which it is to be pursued and effected. The purpose
of the sufficient standard is to prevent a total transference of legislative
power from the lawmaking body to the delegate." 25 In enacting R.A. No.
171
 MR. ROMULO. In that provision of the
Constitution can the procedures which I
have discussed be legislated?
MR. DAVIDE. Yes.
In his book, The Intent of the 1986 Constitution Writers, 27 Father
Bernas likewise affirmed: "In response to questions of
Commissioner Romulo, Davide explained the extent of the power
of the legislature over the process: it could for instance, prescribe
the 'proper form before (the amendment) is submitted to the
people,' it could authorize another body to check the proper
form. It could also authorize the COMELEC, for instance, to check
the authenticity of the signatures of petitioners. Davide
concluded: 'As long as it will not destroy the substantive right to
initiate. In other words, none of the procedures to be proposed
by the legislative body must diminish or impair the right conceded
here.'" Quite clearly, the prohibition against the legislature is to
impair the substantive right of the people to initiate amendments
to the Constitution. It is not, however, prohibited from legislating
the procedure to enforce the people's right of initiative or to
delegate it to another body like the COMELEC with proper
standard.
A survey of our case law will show that this Court has prudentially
refrained from invalidating administrative rules on the ground of lack of
adequate legislative standard to guide their promulgation. As aptly
perceived by former Justice Cruz, "even if the law itself does not
expressly pinpoint the standard, the courts will bend backward to locate
the same elsewhere in order to spare the statute, if it can, from
constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United
States, 29 viz:
xxx xxx xxx
It is true that the Act does not in terms establish a
particular standard to which orders of the military
commander are to conform, or require findings to be
made as a prerequisite to any order. But the Executive
Order, the Proclamations and the statute are not to be
read in isolation from each other. They were parts of a
single program and must be judged as such. The Act of
March 21, 1942, was an adoption by Congress of the
Executive Order and of the Proclamations. The
Proclamations themselves followed a standard authorized
by the Executive Order the necessity of protecting
military resources in the designated areas against
espionage and sabotage.
In the case at bar, the policy and the standards are bright-lined in
R.A. No. 6735. A 20-20 look at the law cannot miss them. They
were not written by our legislators in invisible ink. The policy and
standards can also be found in no less than section 2, Article XVII
of the Constitution on Amendments or Revisions. There is thus no
reason to hold that the standards provided for in R.A. No. 6735
are insufficient for in other cases we have upheld as adequate
more general standards such as "simplicity and dignity," 30
"public interest," 31 "public welfare," 32 "interest of law and
order," 33 "justice and equity,"34 "adequate and efficient
instruction," 35 "public safety," 36 "public policy", 37 "greater
national interest", 38 "protect the local consumer by stabilizing
and subsidizing domestic pump rates", 39 and "promote
simplicity, economy and efficiency in government." 40 A due
regard and respect to the legislature, a co-equal and coordinate
branch of government, should counsel this Court to refrain from
refusing to effectuate laws unless they are clearly
unconstitutional.
III
It is also respectfully submitted that the petition should he dismissed with
respect to the Pedrosas. The inclusion of the Pedrosas in the petition is
utterly baseless. The records show that the case at bar started when
respondent Delfin alone and by himself filed with the COMELEC a Petition
to Amend the Constitution to Lift Term Limits of Elective Officials by
People's Initiative. The Pedrosas did not join the petition. It was Senator
172
Roco who moved to intervene and was allowed to do so by the
COMELEC. The petition was heard and before the COMELEC could resolve
the Delfin petition, the case at bar was filed by the petitioners with this
Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and
Carmen Pedrosa in their capacities as founding members of the People's
Initiative for Reform, Modernization and Action (PIRMA). The suit is an
original action for prohibition with prayer for temporary restraining order
and/or writ of preliminary injunction.
The petition on its face states no cause of action against the Pedrosas.
The only allegation against the Pedrosas is that they are founding
members of the PIRMA which proposes to undertake the signature drive
for people's initiative to amend the Constitution. Strangely, the PIRMA
itself as an organization was not impleaded as a respondent. Petitioners
then prayed that we order the Pedrosas ". . . to desist from conducting a
signature drive for a people's initiative to amend the Constitution." On
December 19, 1996, we temporarily enjoined the Pedrosas ". . . from
conducting a signature drive for people's initiative to amend the
Constitution." It is not enough for the majority to lift the temporary
restraining order against the Pedrosas. It should dismiss the petition and
all motions for contempt against them without equivocation.
One need not draw a picture to impart the proposition that in soliciting
signatures to start a people's initiative to amend the Constitution the
Pedrosas are not engaged in any criminal act. Their solicitation of
signatures is a right guaranteed in black and white by section 2 of Article
XVII of the Constitution which provides that ". . . amendments to this
Constitution may likewise be directly proposed by the people through
initiative. . ." This right springs from the principle proclaimed in section 1,
Article II of the Constitution that in a democratic and republican state
"sovereignty resides in the people and all government authority
emanates from them." The Pedrosas are part of the people and their
voice is part of the voice of the people. They may constitute but a particle
of our sovereignty but no power can trivialize them for sovereignty is
indivisible.
But this is not all. Section 16 of Article XIII of the Constitution provides:
"The right of the people and their organizations to effective and
reasonable participation at all levels of social, political and economic
decision-making shall not be abridged. The State shall by law, facilitate
the establishment of adequate consultation mechanisms." This is another
novel provision of the 1987 Constitution strengthening the sinews of the
sovereignty of our people. In soliciting signatures to amend the
Constitution, the Pedrosas are participating in the political decision-
making process of our people. The Constitution says their right cannot be
abridged without any ifs and buts. We cannot put a question mark on
their right.
Over and above these new provisions, the Pedrosas' campaign to amend
the Constitution is an exercise of their freedom of speech and expression
and their right to petition the government for redress of grievances. We
have memorialized this universal right in all our fundamental laws from
the Malolos Constitution to the 1987 Constitution. We have iterated and
reiterated in our rulings that freedom of speech is a preferred right, the
matrix of other important rights of our people. Undeniably, freedom of
speech enervates the essence of the democratic creed of think and let
think. For this reason, the Constitution encourages speech even if it
protects the speechless.
It is thus evident that the right of the Pedrosas to solicit signatures to
start a people's initiative to amend the Constitution does not depend on
any law, much less on R.A. 6735 or COMELEC Resolution No. 2300. No
law, no Constitution can chain the people to an undesirable status quo.
To be sure, there are no irrepealable laws just as there are no irrepealable
Constitutions. Change is the predicate of progress and we should not fear
change. Mankind has long recognized the truism that the only constant in
life is change and so should the majority.
IV
In a stream of cases, this Court has rhapsodized people power as
expanded in the 1987 Constitution. On October 5, 1993, we observed that
people's might is no longer a myth but an article of faith in our
Constitution. 41 On September 30, 1994, we postulated that people
power can be trusted to check excesses of government and that any
effort to trivialize the effectiveness of people's initiatives ought to be
173
rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a
matter of policy and doctrine will exert every effort to nurture, protect
and promote their legitimate exercise." 43 Just a few days ago, or on
March 11, 1997, by a unanimous decision, 44 we allowed a recall election
in Caloocan City involving the mayor and ordered that he submits his right
to continue in office to the judgment of the tribunal of the people. Thus
far, we have succeeded in transforming people power from an opaque
abstraction to a robust reality. The Constitution calls us to encourage
people empowerment to blossom in full. The Court cannot halt any and
all signature campaigns to amend the Constitution without setting back
the flowering of people empowerment. More important, the Court
cannot seal the lips of people who are pro-change but not those who are
anti-change without concerting the debate on charter change into a
sterile talkaton. Democracy is enlivened by a dialogue and not by a
monologue for in a democracy nobody can claim any infallibility.
Melo and Mendoza, JJ., concur.
VITUG, J., concurring and dissenting:
The COMELEC should have dismissed, outrightly, the Delfin Petition.
It does seem to me that there is no real exigency on the part of the Court
to engross, let alone to commit, itself on all the issues raised and debated
upon by the parties. What is essential at this time would only be to
resolve whether or not the petition filed with the COMELEC, signed by
Atty. Jesus S. Delfin in his capacity as a "founding member of the
Movement for People's Initiative" and seeking through a people initiative
certain modifications on the 1987 Constitution, can properly be regarded
and given its due course. The Constitution, relative to any proposed
amendment under this method, is explicit. Section 2, Article XVII, thereof
provides:
Sec. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number
of registered voters, of which every legislative district
must be represented by at least three per centum of the
registered voters therein. No amendment under this
section shall be authorized within five years following the
ratification of this Constitution nor oftener than once
every five years thereafter.
The Congress shall provide for the implementation of the
exercise of this right.
The Delfin petition is thus utterly deficient. Instead of complying with the
constitutional imperatives, the petition would rather have much of its
burden passed on, in effect, to the COMELEC. The petition would require
COMELEC to schedule "signature gathering all over the country," to
cause the necessary publication of the petition "in newspapers of general
and local circulation," and to instruct "Municipal Election Registrars in all
Regions of the Philippines to assist petitioners and volunteers in
establishing signing stations at the time and on the dates designated for
the purpose.
I submit, even then, that the TRO earlier issued by the Court which,
consequentially, is made permanent under the ponencia should be held to
cover only the Delfin petition and must not be so understood as having
intended or contemplated to embrace the signature drive of the
Pedrosas. The grant of such a right is clearly implicit in the constitutional
mandate on people initiative.
The distinct greatness of a democratic society is that those who reign are
the governed themselves. The postulate is no longer lightly taken as just a
perceived myth but a veritable reality. The past has taught us that the
vitality of government lies not so much in the strength of those who lead
as in the consent of those who are led. The role of free speech is pivotal
but it can only have its true meaning if it comes with the correlative end
of being heard.
Pending a petition for a people's initiative that is sufficient in form and
substance, it behooves the Court, I most respectfully submit, to yet
174
refrain from resolving the question of whether or not Republic Act No.
6735 has effectively and sufficiently implemented the Constitutional
provision on right of the people to directly propose constitutional
amendments. Any opinion or view formulated by the Court at this point
would at best be only a non-binding, albeit possibly persuasive, obiter
dictum.
I vote for granting the instant petition before the Court and for clarifying
that the TRO earlier issued by the Court did not prescribe the exercise by
the Pedrosas of their right to campaign for constitutional amendments.
FRANCISCO, J., dissenting and concurring:
There is no question that my esteemed colleague Mr. Justice Davide has
prepared a scholarly and well-written ponencia. Nonetheless, I cannot
fully subscribe to his view that R. A. No. 6735 is inadequate to cover the
system of initiative on amendments to the Constitution.
To begin with, sovereignty under the constitution, resides in the people
and all government authority emanates from them.1 Unlike our previous
constitutions, the present 1987 Constitution has given more significance
to this declaration of principle for the people are now vested with power
not only to propose, enact or reject any act or law passed by Congress or
by the local legislative body, but to propose amendments to the
constitution as well.2 To implement these constitutional edicts, Congress
in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative
and Referendum Act". This law, to my mind, amply covers an initiative on
the constitution. The contrary view maintained by petitioners is based
principally on the alleged lack of sub-title in the law on initiative to amend
the constitution and on their allegation that:
Republic Act No. 6735 provides for the effectivity of the
law after publication in print media. [And] [t]his indicates
that Republic Act No. 6735 covers only laws and not
constitutional amendments, because constitutional
amendments take effect upon ratification not after
publication.3
which allegation manifests petitioners' selective interpretation of
the law, for under Section 9 of Republic Act No. 6735 on the
Effectivity of Initiative or Referendum Proposition paragraph (b)
thereof is clear in providing that:
The proposition in an initiative on the constitution approved by a majority
of the votes cast in the plebiscite shall become effective as to the day of
the plebiscite.
It is a rule that every part of the statute must be interpreted with
reference the context, i.e., that every part of the statute must be
construed together with the other parts and kept subservient to the
general intent of the whole enactment. 4 Thus, the provisions of Republic
Act No. 6735 may not be interpreted in isolation. The legislative intent
behind every law is to be extracted from the statute as a whole.5
In its definition of terms, Republic Act No. 6735 defines initiative as "the
power of the people to propose amendments to the constitution or to
propose and enact legislations through an election called for the purpose".6
The same section, in enumerating the three systems of initiative, included
an "initiative on the constitution which refers to a petition proposing
amendments to the constitution"7 Paragraph (e) again of Section 3
defines "plebiscite" as "the electoral process by which an initiative on the
constitution is approved or rejected by the people" And as to the material
requirements for an initiative on the Constitution, Section 5(b) distinctly
enumerates the following:
A petition for an initiative on the 1987 Constitution must
have at least twelve per centum (12%) of the total number
of the registered voters as signatories, of which every
legislative district must be represented by at least three
per centum (3%) of the registered voters therein. Initiative
on the constitution may be exercised only after five (5)
years from the ratification of the 1987 Constitution and
only once every five years thereafter.
175
These provisions were inserted, on purpose, by Congress the
intent being to provide for the implementation of the right to
propose an amendment to the Constitution by way of initiative.
"A legal provision", the Court has previously said, "must not be
construed as to be a useless surplusage, and accordingly,
meaningless, in the sense of adding nothing to the law or having
no effect whatsoever thereon". 8 That this is the legislative intent
is further shown by the deliberations in Congress, thus:
. . . More significantly, in the course of the consideration
of the Conference Committee Report on the disagreeing
provisions of Senate Bill No. 17 and House Bill No. 21505, it
was noted:
MR. ROCO. On the Conference Committee
Report on the disagreeing provisions
between Senate Bill No. 17 and the
consolidated House Bill No. 21505 which
refers to the system providing for the
initiative and referendum, fundamentally,
Mr. Speaker, we consolidated the Senate
and the House versions, so both versions
are totally intact in the bill. The Senators
ironically provided for local initiative and
referendum and the House of
Representatives correctly provided for
initiative and referendum an the
Constitution and on national legislation.
I move that we approve the consolidated
bill.
MR. ALBANO, Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the
pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished
sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. What does
the sponsor say?
MR. ROCO. Willingly, Mr. Speaker.
THE SPEAKER PRO TEMPORE. The
Gentleman will please proceed.
MR. ALBANO. I heard the sponsor say that
the only difference in the two bills was
that in the Senate version there was a
provision for local initiative and
referendum, whereas the House version
has none.
MR. ROCO. In fact, the Senate version
provided purely for local initiative and
referendum, whereas in the House
version, we provided purely for national
and constitutional legislation.
MR. ALBANO. Is it our understanding,
therefore, that the two provisions were
incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a
complete initiative and referendum both
in the constitutional amendment and
national legislation.
MR. ROCO. That is correct.
176
 MR. ALBANO. And provincial as well as
municipal resolutions?
MR. ROCO. Down to barangay, Mr.
Speaker.
MR. ALBANO. And this initiative and
referendum is in consonance with the
provision of the Constitution to enact the
enabling law, so that we shall have a
system which can be done every five
years. Is it five years in the provision of the
Constitution?
MR. ROCO. That is correct, Mr. Speaker.
For constitutional amendments to the
1987 Constitution, it is every five years."
(Id. [Journal and Record of the House of
Representatives], Vol. VIII, 8 June 1989, p.
960; quoted in Garcia v. Comelec, 237
SCRA 279, 292-293 [1994]; emphasis
supplied)
. . . The Senate version of the Bill may not have
comprehended initiatives on the Constitution. When
consolidated, though, with the House version of the Bill
and as approved and enacted into law, the proposal
included initiative on both the Constitution and ordinary
laws.9
Clearly then, Republic Act No. 6735 covers an initiative on the
constitution. Any other construction as what petitioners foist
upon the Court constitute a betrayal of the intent and spirit
behind the enactment.
At any rate, I agree with the ponencia that the Commission on Elections,
at present, cannot take any action (such as those contained in the
Commission's orders dated December 6, 9, and 12, 1996 [Annexes B, C
and B-1]) indicative of its having already assumed jurisdiction over private
respondents' petition. This is so because from the tenor of Section 5 (b)
of R.A. No. 6735 it would appear that proof of procurement of the
required percentage of registered voters at the time the petition for
initiative is filed, is a jurisdictional requirement.
Thus:
A petition for an initiative on the 1987 Constitution must
have at least twelve per centum (12%) of the total number
of registered voters as signatories, of which every
legislative district must be represented by at least three
per centum (3%) of the registered voters therein. Initiative
on the Constitution may be exercised only after five (5)
years from the ratification of the 1987 Constitution and
only once every five (5) years thereafter.
Here private respondents' petition is unaccompanied by the
required signatures. This defect notwithstanding, it is without
prejudice to the refiling of their petition once compliance with the
required percentage is satisfactorily shown by private
respondents. In the absence, therefore, of an appropriate
petition before the Commission on Elections, any determination
of whether private respondents' proposal constitutes an
amendment or revision is premature.
ACCORDINGLY, I take exception to the conclusion reached in the
ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a
people's initiative to propose amendments to the Constitution. I,
however, register my concurrence with the dismissal, in the meantime, of
private respondents' petition for initiative before public respondent
Commission on Elections until the same be supported by proof of strict
compliance with Section 5 (b) of R.A. No. 6735.
Melo and Mendoza, JJ., concur.
177

PANGANIBAN, J., concurring and dissenting:
Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for
the majority, holds that:
(1) The Comelec acted without jurisdiction or with grave abuse of
discretion in entertaining the "initiatory" Delfin Petition.
(2) While the Constitution allows amendments to "be directly proposed
by the people through initiative," there is no implementing law for the
purpose. RA 6735 is "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the
Constitution is concerned."
(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and
regulations on the conduct of initiative on amendments to the
Constitution, is void."
I concur with the first item above. Until and unless an initiatory petition
can show the required number of signatures in this case, 12% of all the
registered voters in the Philippines with at least 3% in every legislative
district no public funds may be spent and no government resources
may be used in an initiative to amend the Constitution. Verily, the
Comelec cannot even entertain any petition absent such signatures.
However, I dissent most respectfully from the majority's two other rulings.
Let me explain.
Under the above restrictive holdings espoused by the Court's majority, the
Constitution cannot be amended at all through a people's initiative. Not by
Delfin, not by Pirma, not by anyone, not even by all the voters of the
country acting together. This decision will effectively but unnecessarily
curtail, nullify, abrogate and render inutile the people's right to change the
basic law. At the very least, the majority holds the right hostage to
congressional discretion on whether to pass a new law to implement it,
when there is already one existing at present. This right to amend through
initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the
Constitution, as follows:
Sec. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number
of registered voters, of which every legislative district
must be represented by at least three per centum of the
registered voters therein. No amendment under this
section shall be authorized within five years following the
ratification of this Constitution nor oftener than once
every five years thereafter.
With all due respect, I find the majority's position all too sweeping and all
too extremist. It is equivalent to burning the whole house to exterminate
the rats, and to killing the patient to relieve him of pain. What Citizen
Delfin wants the Comelec to do we should reject. But we should not
thereby preempt any future effort to exercise the right of initiative
correctly and judiciously. The fact that the Delfin Petition proposes a misuse
of initiative does not justify a ban against its proper use. Indeed, there is a
right way to do the right thing at the right time and for the right reason.
Taken Together and Interpreted Properly, the Constitution, RA 6735
and Comelec Resolution 2300 Are Sufficient to Implement
Constitutional Initiatives
While RA 6735 may not be a perfect law, it was as the majority openly
concedes intended by the legislature to cover and, I respectfully
submit, it contains enough provisions to effectuate an initiative on the
Constitution.1 I completely agree with the inspired and inspiring opinions
of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that
RA 6735, the Roco law on initiative, sufficiently implements the right of
the people to initiate amendments to the Constitution. Such views, which
I shall no longer repeat nor elaborate on, are thoroughly consistent with
this Court's unanimous en banc rulings in Subic Bay Metropolitan Authority
vs. Commission on Elections, 2 that "provisions for initiative . . . are (to be)
liberally construed to effectuate their purposes, to facilitate and not
hamper the exercise by the voters of the rights granted thereby"; and in
178
Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of
people's initiatives ought to be rejected."
No law can completely and absolutely cover all administrative details. In
recognition of this, RA 6735 wisely empowered 4 the Commission on
Election "to promulgate such rules and regulations as may be necessary
to carry out the purposes of this Act." And pursuant thereto, the Comelec
issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very
words, was promulgated "to govern the conduct of initiative on the
Constitution and initiative and referendum on national and local laws,"
not by the incumbent Commission on Elections but by one then
composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E.
Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and
Magdara B. Dimaampao. All of these Commissioners who signed
Resolution 2300 have retired from the Commission, and thus we cannot
ascribe any vile motive unto them, other than an honest, sincere and
exemplary effort to give life to a cherished right of our people.
The majority argues that while Resolution 2300 is valid in regard to
national laws and local legislations, it is void in reference to constitutional
amendments. There is no basis for such differentiation. The source of and
authority for the Resolution is the same law, RA 6735.
I respectfully submit that taken together and interpreted properly and
liberally, the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and
Comelec Resolution 2300 provide more than sufficient authority to
implement, effectuate and realize our people's power to amend the
Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
I am glad the majority decided to heed our plea to lift the temporary
restraining order issued by this Court on 18 December 1996 insofar as it
prohibited Petitioner Delfin and the Spouses Pedrosa from exercising
their right of initiative. In fact, I believe that such restraining order as
against private respondents should not have been issued, in the first
place. While I agree that the Comelec should be stopped from using
public funds and government resources to help them gather signatures, I
firmly believe that this Court has no power to restrain them from
exercising their right of initiative. The right to propose amendments to
the Constitution is really a species of the right of free speech and free
assembly. And certainly, it would be tyrannical and despotic to stop
anyone from speaking freely and persuading others to conform to his/her
beliefs. As the eminent Voltaire once said, "I may disagree with what you
say, but I will defend to the death your right to say it." After all, freedom
is not really for the thought we agree with, but as Justice Holmes wrote,
"freedom for the thought that we hate."5
Epilogue
By way of epilogue, let me stress the guiding tenet of my Separate
Opinion. Initiative, like referendum and recall, is a new and treasured
feature of the Filipino constitutional system. All three are institutionalized
legacies of the world-admired EDSA people power. Like elections and
plebiscites, they are hallowed expressions of popular sovereignty. They
are sacred democratic rights of our people to be used as their final
weapons against political excesses, opportunism, inaction, oppression
and misgovernance; as well as their reserved instruments to exact
transparency, accountability and faithfulness from their chosen leaders.
While on the one hand, their misuse and abuse must be resolutely struck
down, on the other, their legitimate exercise should be carefully nurtured
and zealously protected.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et
al. and to DIRECT Respondent Commission on Elections to DISMISS the
Delfin Petition on the ground of prematurity, but not on the other
grounds relied upon by the majority. I also vote to LIFT the temporary
restraining order issued on 18 December 1996 insofar as it prohibits Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to
free speech in proposing amendments to the Constitution.
Melo and Mendoza, JJ., concur.
179
Separate Opinions
PUNO, J., concurring and dissenting:
I join the ground-breaking ponencia of our esteemed colleague, Mr.
Justice Davide insofar as it orders the COMELEC to dismiss the Delfin
petition. I regret, however, I cannot share the view that R.A. No. 5735 and
COMELEC Resolution No. 2300 are legally defective and cannot
implement the people's initiative to amend the Constitution. I likewise
submit that the petition with respect to the Pedrosas has no leg to stand
on and should be dismissed. With due respect:
I Constitution the principle remained applicable, the 1981
First, I submit that R.A. No. 6735 sufficiently implements the right of the
people to initiate amendments to the Constitution thru initiative. Our
effort to discover the meaning of R.A. No. 6735 should start with the
search of the intent of our lawmakers. A knowledge of this intent is
critical for the intent of the legislature is the law and the controlling
factor in its interpretation.1 Stated otherwise, intent is the essence of the
law, the spirit which gives life to its enactment.2
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was
intended to cover initiative to propose amendments to the Constitution."
It ought to be so for this intent is crystal clear from the history of the law
which was a consolidation of House Bill No. 215053 and Senate Bill No.
17.4 Senate Bill No. 17 was entitled "An Act Providing for a System of
Initiative and Referendum and the Exception Therefrom, Whereby People
in Local Government Units Can Directly Propose and Enact Resolutions
and Ordinances or Approve or Reject any Ordinance or Resolution Passed
by the Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not
include people's initiative to propose amendments to the Constitution. In
checkered contrast, House Bill No. 21505 5 expressly included people's
initiative to amend the Constitution. Congressman (now Senator) Raul
Roco emphasized in his sponsorship remarks:6
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ROCO
At the outset, Mr. Roco provided the following
backgrounder on the constitutional basis of the proposed
measure.
1. As cited in Vera vs. Avelino (1946), the presidential
system which was introduced by the 1935 Constitution
saw the application of the principle of separation of
powers.
2. While under the parliamentary system of the 1973
amendments to the Constitution of 1973 ensured
presidential dominance over the Batasang Pambansa.
Constitutional history then saw the shifting and sharing of
legislative powers between the Legislature and the
Executive departments. Transcending changes in the
exercise of legislative power is the declaration in the
Philippine Constitution that the Philippines is a republican
state where sovereignty resides in the people and all
sovereignty emanates from them.
3. Under the 1987 Constitution, the lawmaking power is
still preserved in Congress; however, to institutionalize
direct action of the people as exemplified in the 1986
Revolution, the Constitution recognizes the power of the
people, through the system of initiative and referendum.
As cited in Section 1, Article VI of the 1987 Constitution,
Congress does not have plenary powers since reserve
powers are given to the people expressly. Section 32 of
the same Article mandates Congress to pass at the
soonest possible time, a bill on referendum and initiative,
and to share its legislative powers with the people.
180
Section 2, Article XVII of the 1987 Constitution, on the
other hand, vests in the people the power to directly
propose amendments to the Constitution through
initiative, upon petition of at least 12 percent of the total
number of registered voters.
Stating that House Bill No. 21505 is the Committee's
response to the duty imposed on Congress to implement
the exercise by the people of the right to initiative and
referendum, Mr. Roco recalled the beginnings of the
system of initiative and referendum under Philippine Law.
He cited Section 99 of the Local Government Code which
vests in the barangay assembly the power to initiate
legislative processes, decide the holding of plebiscite and
hear reports of the Sangguniang Barangay, all of which
are variations of the power of initiative and referendum.
He added that the holding of barangay plebiscites and
referendum are likewise provided in Sections 100 and 101
of the same Code.
Thereupon, for the sake of brevity, Mr. Roco moved that
pertinent quotation on the subject which he will later
submit to the Secretary of the House be incorporated as
part of his sponsorship speech.
He then cited examples of initiative and referendum
similar to those contained in the instant Bill among which
are the constitutions of states in the United States which
recognize the right of registered voters to initiate the
enactment of any statute or to project any existing law or
parts thereof in a referendum. These states, he said, are
Alaska, Alabama, Montana, Massachusets, Dakota,
Oklahoma, Oregon, and practically all other states.
Mr. Roco explained that in certain American states, the
kind of laws to which initiative and referendum apply is
also without limitation, except for emergency measures,
which are likewise incorporated in House Bill No. 21505.
He added that the procedure provided by the Bill from the
filing of the petition, the requirements of a certain
percentage of supporters to present a proposition, to the
submission to electors are substantially similar to the
provisions in American laws. Although an infant in
Philippine political structure, the system of initiative and
referendum, he said, is a tried and tested system in other
jurisdictions, and the Bill is patterned after American
experience.
He further explained that the bill has only 12 sections, and
recalled that the Constitutional Commissioners saw the
system of the initiative and referendum as an instrument
which can be used should the legislature show itself to be
indifferent to the needs of the people. This is the reason,
he claimed, why now is an opportune time to pass the Bill
even as he noted the felt necessity of the times to pass
laws which are necessary to safeguard individual rights
and liberties.
At this juncture Mr. Roco explained the process of
initiative and referendum as advocated in House Bill No.
21505. He stated that:
1. Initiative means that the people, on their own political
judgment, submit a Bill for the consideration of the
general electorate.
2. The instant Bill provides three kinds of initiative,
namely; the initiative to amend the Constitution once
every five years; the initiative to amend statutes approved
by Congress; and the initiative to amend local ordinances.
3. The instant Bill gives a definite procedure and allows
the Commission on Elections (COMELEC) to define rules
and regulations on the power of initiative.
181
 4. Referendum means that the legislators seek the
consent of the people on measures that they have
approved.
5. Under Section 4 of the Bill the people can initiate a
referendum which is a mode of plebiscite by presenting a
petition therefor, but under certain limitations, such as
the signing of said petition by at least 10 percent of the
total of registered voters at which every legislative district
is represented by at least three percent of the registered
voters thereof. Within 30 days after receipt of the
petition, the COMELEC shall determine the sufficiency of
the petition, publish the same, and set the date of the
referendum within 45 to 90-day period.
6. When the matter under referendum or initiative is
approved by the required number of votes, it shall
become effective 15 days following the completion of its
publication in the Official Gazette.
In concluding his sponsorship remarks, Mr. Roco stressed
that the Members cannot ignore the people's call for
initiative and referendum and urged the Body to approve
House Bill No. 21505.
At this juncture, Mr. Roco also requested that the
prepared text of his speech together with the footnotes
be reproduced as part of the Congressional Records.
The same sentiment as to the bill's intent to implement people's
initiative to amend the Constitution was stressed by then
Congressman (now Secretary of Agriculture) Salvador Escudero
III in his sponsorship remarks, viz:7
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ESCUDERO
Mr. Escudero first pointed out that the people have been
clamoring for a truly popular democracy ever since,
especially in the so-called parliament of the streets. A
substantial segment of the population feels, he said, that
the form of democracy is there, but not the reality or
substance of it because of the increasingly elitist
approach of their representatives to the country's
problem.
Whereupon, Mr. Escudero pointed out that the
Constitution has provided a means whereby the people
can exercise the reserved power of initiative to propose
amendments to the Constitution, and requested that
Sections 1 and 32, Article VI; Section 3, Article X; and
Section 2, Article XVII of the Constitution be made part of
his sponsorship remarks.
Mr. Escudero also stressed that an implementing law is
needed for the aforecited Constitutional provisions. While
the enactment of the Bill will give way to strong
competition among cause-oriented and sectoral groups,
he continued, it will hasten the politization of the
citizenry, aid the government in forming an enlightened
public opinion, and produce more responsive legislation.
The passage of the Bill will also give street
parliamentarians the opportunity to articulate their ideas
in a democratic forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped for the
early approval of the Bill so that it can be initially used for
the Agrarian Reform Law. He said that the passage of
House Bill No. 21505 will show that the Members can set
aside their personal and political consideration for the
greater good of the people.
The disagreeing provisions in Senate Bill No. 17 and House Bill No.
21505 were threshed out in a Bicameral Conference Committee.8
In the meeting of the Committee on June 6, 1989,9 the members
182
agreed that the two (2) bills should be consolidated and that the
consolidated version should include people's initiative to amend
the Constitution as contemplated by House Bill No. 21505. The
transcript of the meeting states:
xxx xxx xxx
CHAIRMAN GONZALES. But at any rate, as
I have said, because this is new in our
political system, the Senate decided on a
more cautious approach and limiting it
only to the local government units
because even with that stage where . . . at
least this has been quite popular, ano? It
has been attempted on a national basis.
Alright. There has not been a single
attempt. Now, so, kami limitado doon.
And, second, we consider also that it is
only fair that the local legislative body
should be given a chance to adopt the
legislation bill proposed, right? Iyong
sinasabing indirect system of initiative. If
after all, the local legislative assembly or
body is willing to adopt it in full or in toto,
there ought to be any reason for initiative,
ano for initiative. And, number 3, we feel
that there should be some limitation on
the frequency with which it should be
applied. Number 4, na the people, thru
initiative, cannot enact any ordinance that
is beyond the scope of authority of the
local legislative body, otherwise, my God,
mag-aassume sila ng power that is
broader and greater than the grant of
legislative power to the Sanggunians. And
Number 5, because of that, then a
proposition which has been the result of a
successful initiative can only carry the
force and effect of an ordinance and
therefore that should not deprive the
court of its jurisdiction to declare it null
and void for want of authority. Ha, di ba? I
mean it is beyond powers of local
government units to enact. Iyon ang main
essence namin, so we concentrated on
that. And that is why . . . so ang sa inyo
naman includes iyon sa Constitution,
amendment to the Constitution eh . . .
national laws. Sa amin, if you insist on
that, alright, although we feel na it will in
effect become a dead statute. Alright, and
we can agree, we can agree. So ang
mangyayari dito, and magiging basic nito,
let us not discuss anymore kung alin and
magiging basic bill, ano, whether it is the
Senate Bill or whether it is the House bill.
Logically it should be ours sapagkat una
iyong sa amin eh. It is one of the first bills
approved by the Senate kaya ang number
niyan, makikita mo, 17, eh. Huwag na
nating pagusapan. Now, if you insist, really
iyong features ng national at saka
constitutional, okay. ____ gagawin na
natin na consolidation of both bills.
HON. ROCO. Yes, we shall consolidate.
CHAIRMAN GONZALES. Consolidation of
the Senate and House Bill No. so and so. 10
When the consolidated bill was presented to the House for
approval, then Congressman Roco upon interpellation by
Congressman Rodolfo Albano, again confirmed that it covered
people's initiative to amend the Constitution. The record of the
House Representative states: 11
183
xxx xxx xxx
THE SPEAKER PRO TEMPORE. The
Gentleman from Camarines Sur is
recognized.
MR. ROCO. On the Conference Committee
Report on the disagreeing provisions
between Senate Bill No. 21505 which
refers to the system providing for the
initiative and referendum, fundamentally,
Mr. Speaker, we consolidated the Senate
and the House versions, so both versions
are totally intact in the bill. The Senators
ironically provided for local initiative and
referendum and the House
Representatives correctly provided for
initiative and referendum on the
Constitution and on national legislation.
I move that we approve the consolidated
bill.
MR. ALBANO. Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the
pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished
sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. The
Gentlemen will please proceed.
MR. ALBANO. I heard the sponsor say that
the only difference in the two bills was
that in the Senate version there was a
provision for local initiative and
referendum, whereas the House version
has none.
MR. ROCO. In fact, the Senate version
provide purely for local initiative and
referendum, whereas in the House
version, we provided purely for national
and constitutional legislation.
MR. ALBANO. Is it our understanding
therefore, that the two provisions were
incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a
complete initiative and referendum both
in the constitutional amendment and
national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as
municipal resolutions?
MR. ROCO. Down to barangay, Mr.
Speaker.
MR. ALBANO. And this initiative and
referendum is in consonance with the
provision of the Constitution whereby it
mandates this Congress to enact the
enabling law, so that we shall have a
system which can be done every five
years. Is it five years in the provision of the
Constitution?
184
 MR. ROCO. That is correct, Mr. Speaker.
For constitutional amendments in the 1987
Constitution, it is every five years.
MR. ALBANO. For every five years, Mr.
Speaker?
MR. ROCO. Within five years, we cannot
have multiple initiatives and referenda.
MR. ALBANO. Therefore, basically, there
was no substantial difference between the
two versions?
MR. ROCO. The gaps in our bill were filled
by the Senate which, as I said earlier,
ironically was about local, provincial and
municipal legislation.
MR. ALBANO. And the two bills were
consolidated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. Thank you, Mr. Speaker.
APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)
THE SPEAKER PRO TEMPORE. There was a motion to
approve this consolidated bill on Senate Bill No. 17 and
House Bill No. 21505.
Is there any objection? (Silence. The Chair hears none; the
motion is approved.
Since it is crystalline that the intent of R.A. No. 6735 is to
implement the people's initiative to amend the Constitution, it is
our bounden duty to interpret the law as it was intended by the
legislature. We have ruled that once intent is ascertained, it must
be enforced even if it may not be consistent with the strict letter
of the law and this ruling is as old as the mountain. We have also
held that where a law is susceptible of more than one
interpretation, that interpretation which will most tend to
effectuate the manifest intent of the legislature will be adopted.
12
The text of R.A. No. 6735 should therefore be reasonably construed to
effectuate its intent to implement the people's initiative to amend the
Constitution. To be sure, we need not torture the text of said law to reach
the conclusion that it implements people's initiative to amend the
Constitution. R.A. No. 6735 is replete with references to this prerogative
of the people.
First, the policy statement declares:
Sec. 2. Statement of Policy. The power of the people
under a system of initiative and referendum to directly
propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by
any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized
and guaranteed. (emphasis supplied)
Second, the law defines "initiative" as "the power of the people to
propose amendments to the constitution or to propose and enact
legislations through an election called for the purpose," and "plebiscite"
as "the electoral process by which an initiative on the Constitution is
approved or rejected by the people.
Third, the law provides the requirements for a petition for initiative to
amend the Constitution. Section 5(b) states that "(a) petition for an
initiative on the 1987 Constitution must have at least twelve per centum
(12%) of the total number of registered voters as signatories, of which
185
every legislative district must be represented by at least three per centum
(3%) of the registered voters therein." It also states that "(i)nitiative on
the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years
thereafter.
Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section
9(b) states that "(t)he proposition in an initiative on the Constitution
approved by a majority of the votes cast in the plebiscite shall become
effective as to the day of the plebiscite.
It is unfortunate that the majority decision resorts to a strained
interpretation of R.A. No. 6735 to defeat its intent which it itself concedes
is to implement people's initiative to propose amendments to the
Constitution. Thus, it laments that the word "Constitution" is neither
germane nor relevant to the policy thrust of section 2 and that the
statute's subtitling is not accurate. These lapses are to be expected for
laws are not always written in impeccable English. Rightly, the
Constitution does not require our legislators to be word-smiths with the
ability to write bills with poetic commas like Jose Garcia Villa or in lyrical
prose like Winston Churchill. But it has always been our good policy not
to refuse to effectuate the intent of a law on the ground that it is badly
written. As the distinguished Vicente Francisco 13 reminds us: "Many laws
contain words which have not been used accurately. But the use of inapt
or inaccurate language or words, will not vitiate the statute if the
legislative intention can be ascertained. The same is equally true with
reference to awkward, slovenly, or ungrammatical expressions, that is,
such expressions and words will be construed as carrying the meaning
the legislature intended that they bear, although such a construction
necessitates a departure from the literal meaning of the words used.
In the same vein, the argument that R.A. No. 7535 does not include
people's initiative to amend the Constitution simply because it lacks a
sub-title on the subject should be given the weight of helium. Again, the
hoary rule in statutory construction is that headings prefixed to titles,
chapters and sections of a statute may be consulted in aid of
interpretation, but inferences drawn therefrom are entitled to very little
weight, and they can never control the plain terms of the enacting
clauses. 14
All said, it is difficult to agree with the majority decision that refuses to
enforce the manifest intent or spirit of R.A. No. 6735 to implement the
people's initiative to amend the Constitution. It blatantly disregards the
rule cast in concrete that the letter of the law must yield to its spirit for
the letter of the law is its body but its spirit is its soul. 15
II
COMELEC Resolution No. 2300, 16 promulgated under the stewardship of
Commissioner Haydee Yorac, then its Acting Chairman, spelled out the
procedure on how to exercise the people's initiative to amend the
Constitution. This is in accord with the delegated power granted by
section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The
Commission is hereby empowered to promulgate such rules and
regulations as may be necessary to carry out the purposes of this Act." By
no means can this delegation of power be assailed as infirmed. In the
benchmark case of Pelaez v. Auditor General, 17 this Court, thru former
Chief Justice Roberto Concepcion laid down the test to determine
whether there is undue delegation of legislative power, viz:
xxx xxx xxx
Although Congress may delegate to another branch of
the Government the power to fill details in the execution,
enforcement or administration of a law, it is essential, to
forestall a violation of the principle of separation of
powers, that said law: (a) be complete in itself it must
set forth therein the policy to be executed, carried out or
implemented by the delegate and (b) to fix standard
the limits of which are sufficiently determinate or
determinable to which the delegate must conform in
the performance of his functions. Indeed, without a
statutory declaration of policy, which is the essence of
every law, and, without the aforementioned standard,
there would be no means to determine, with reasonable
186
 certainty, whether the delegate has acted within or
beyond the scope of his authority. Hence, he could
thereby arrogate upon himself the power, not only to
make the law, but, also and this is worse to unmake
it, by adopting measures inconsistent with the end sought
to be attained by the Act of Congress, thus nullifying the
principle of separation of powers and the system of
checks and balances, and, consequently, undermining the
very foundation of our republican system.
Section 68 of the Revised Administrative Code does not
meet these well-settled requirements for a valid
delegation of the power to fix the details in the
enforcement of a law. It does not enunciate any policy to
be carried out or implemented by the President. Neither
does it give a standard sufficiently precise to avoid the evil
effects above referred to.
R.A. No. 6735 sufficiently states the policy and the standards to guide the
COMELEC in promulgating the law's implementing rules and regulations
of the law. As aforestated, section 2 spells out the policy of the law; viz:
"The power of the people under a system of initiative and referendum to
directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative
body upon compliance with the requirements of this Act is hereby
affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735
are the standards to canalize the delegated power to the COMELEC to
promulgate rules and regulations from overflowing. Thus, the law states
the number of signatures necessary to start a people's initiative, 18
directs how initiative proceeding is commenced, 19 what the COMELEC
should do upon filing of the petition for initiative, 20 how a proposition is
approved, 21 when a plebiscite may be held, 22 when the amendment
takes effect 23 and what matters may not be the subject of any initiative.
24 By any measure, these standards are adequate.
Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient
standard is intended to map out the boundaries of the delegates'
authority by defining the legislative policy and indicating the
circumstances under which it is to be pursued and effected. The purpose
of the sufficient standard is to prevent a total transference of legislative
power from the lawmaking body to the delegate." 25 In enacting R.A. No.
6735, it cannot be said that Congress totally transferred its power to
enact the law implementing people's initiative to COMELEC. A close look
at COMELEC Resolution No. 2300 will show that it merely provided the
procedure to effectuate the policy of R.A. No. 6735 giving life to the
people's initiative to amend the Constitution. The debates 26 in the
Constitutional Commission make it clear that the rules of procedure to
enforce the people's initiative can be delegated, thus:
MR. ROMULO. Under Commissioner
Davide's amendment, it is possible for the
legislature to set forth certain procedures
to carry out the initiative. . . ?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's
amendment does not prevent the
legislature from asking another body to
set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct.
In other words, the implementation of this
particular right would be subject to
legislation, provided the legislature cannot
determine anymore the percentage of the
requirement.
MR. DAVIDE. As long as it will not destroy
the substantive right to initiate. In other
words, none of the procedures to be
proposed by the legislative body must
187
 diminish or impair the right conceded
here.
MR. ROMULO. In that provision of the
Constitution can the procedures which I
have discussed be legislated?
MR. DAVIDE. Yes.
In his book, The Intent of the 1986 Constitution Writers, 27 Father
Bernas likewise affirmed: "In response to questions of
Commissioner Romulo, Davide explained the extent of the power
of the legislature over the process: it could for instance, prescribe
the 'proper form before (the amendment) is submitted to the
people,' it could authorize another body to check the proper
form. It could also authorize the COMELEC, for instance, to check
the authenticity of the signatures of petitioners. Davide
concluded: 'As long as it will not destroy the substantive right to
initiate. In other words, none of the procedures to be proposed
by the legislative body must diminish or impair the right conceded
here.'" Quite clearly, the prohibition against the legislature is to
impair the substantive right of the people to initiate amendments
to the Constitution. It is not, however, prohibited from legislating
the procedure to enforce the people's right of initiative or to
delegate it to another body like the COMELEC with proper
standard.
A survey of our case law will show that this Court has prudentially
refrained from invalidating administrative rules on the ground of lack of
adequate legislative standard to guide their promulgation. As aptly
perceived by former Justice Cruz, "even if the law itself does not
expressly pinpoint the standard, the courts will bend backward to locate
the same elsewhere in order to spare the statute, if it can, from
constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United
States, 29 viz:
xxx xxx xxx
It is true that the Act does not in terms establish a
particular standard to which orders of the military
commander are to conform, or require findings to be
made as a prerequisite to any order. But the Executive
Order, the Proclamations and the statute are not to be
read in isolation from each other. They were parts of a
single program and must be judged as such. The Act of
March 21, 1942, was an adoption by Congress of the
Executive Order and of the Proclamations. The
Proclamations themselves followed a standard authorized
by the Executive Order the necessity of protecting
military resources in the designated areas against
espionage and sabotage.
In the case at bar, the policy and the standards are bright-lined in
R.A. No. 6735. A 20-20 look at the law cannot miss them. They
were not written by our legislators in invisible ink. The policy and
standards can also be found in no less than section 2, Article XVII
of the Constitution on Amendments or Revisions. There is thus no
reason to hold that the standards provided for in R.A. No. 6735
are insufficient for in other cases we have upheld as adequate
more general standards such as "simplicity and dignity," 30
"public interest," 31 "public welfare," 32 "interest of law and
order," 33 "justice and equity,"34 "adequate and efficient
instruction," 35 "public safety," 36 "public policy", 37 "greater
national interest", 38 "protect the local consumer by stabilizing
and subsidizing domestic pump rates", 39 and "promote
simplicity, economy and efficiency in government." 40 A due
regard and respect to the legislature, a co-equal and coordinate
branch of government, should counsel this Court to refrain from
refusing to effectuate laws unless they are clearly
unconstitutional.
III
It is also respectfully submitted that the petition should he dismissed with
respect to the Pedrosas. The inclusion of the Pedrosas in the petition is
utterly baseless. The records show that the case at bar started when
188
respondent Delfin alone and by himself filed with the COMELEC a Petition
to Amend the Constitution to Lift Term Limits of Elective Officials by
People's Initiative. The Pedrosas did not join the petition. It was Senator
Roco who moved to intervene and was allowed to do so by the
COMELEC. The petition was heard and before the COMELEC could resolve
the Delfin petition, the case at bar was filed by the petitioners with this
Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and
Carmen Pedrosa in their capacities as founding members of the People's
Initiative for Reform, Modernization and Action (PIRMA). The suit is an
original action for prohibition with prayer for temporary restraining order
and/or writ of preliminary injunction.
The petition on its face states no cause of action against the Pedrosas.
The only allegation against the Pedrosas is that they are founding
members of the PIRMA which proposes to undertake the signature drive
for people's initiative to amend the Constitution. Strangely, the PIRMA
itself as an organization was not impleaded as a respondent. Petitioners
then prayed that we order the Pedrosas ". . . to desist from conducting a
signature drive for a people's initiative to amend the Constitution." On
December 19, 1996, we temporarily enjoined the Pedrosas ". . . from
conducting a signature drive for people's initiative to amend the
Constitution." It is not enough for the majority to lift the temporary
restraining order against the Pedrosas. It should dismiss the petition and
all motions for contempt against them without equivocation.
One need not draw a picture to impart the proposition that in soliciting
signatures to start a people's initiative to amend the Constitution the
Pedrosas are not engaged in any criminal act. Their solicitation of
signatures is a right guaranteed in black and white by section 2 of Article
XVII of the Constitution which provides that ". . . amendments to this
Constitution may likewise be directly proposed by the people through
initiative. . ." This right springs from the principle proclaimed in section 1,
Article II of the Constitution that in a democratic and republican state
"sovereignty resides in the people and all government authority
emanates from them." The Pedrosas are part of the people and their
voice is part of the voice of the people. They may constitute but a particle
of our sovereignty but no power can trivialize them for sovereignty is
indivisible.
But this is not all. Section 16 of Article XIII of the Constitution provides:
"The right of the people and their organizations to effective and
reasonable participation at all levels of social, political and economic
decision-making shall not be abridged. The State shall by law, facilitate
the establishment of adequate consultation mechanisms." This is another
novel provision of the 1987 Constitution strengthening the sinews of the
sovereignty of our people. In soliciting signatures to amend the
Constitution, the Pedrosas are participating in the political decision-
making process of our people. The Constitution says their right cannot be
abridged without any ifs and buts. We cannot put a question mark on
their right.
Over and above these new provisions, the Pedrosas' campaign to amend
the Constitution is an exercise of their freedom of speech and expression
and their right to petition the government for redress of grievances. We
have memorialized this universal right in all our fundamental laws from
the Malolos Constitution to the 1987 Constitution. We have iterated and
reiterated in our rulings that freedom of speech is a preferred right, the
matrix of other important rights of our people. Undeniably, freedom of
speech enervates the essence of the democratic creed of think and let
think. For this reason, the Constitution encourages speech even if it
protects the speechless.
It is thus evident that the right of the Pedrosas to solicit signatures to
start a people's initiative to amend the Constitution does not depend on
any law, much less on R.A. 6735 or COMELEC Resolution No. 2300. No
law, no Constitution can chain the people to an undesirable status quo.
To be sure, there are no irrepealable laws just as there are no irrepealable
Constitutions. Change is the predicate of progress and we should not fear
change. Mankind has long recognized the truism that the only constant in
life is change and so should the majority.
IV
In a stream of cases, this Court has rhapsodized people power as
expanded in the 1987 Constitution. On October 5, 1993, we observed that
people's might is no longer a myth but an article of faith in our
Constitution. 41 On September 30, 1994, we postulated that people
189
power can be trusted to check excesses of government and that any
effort to trivialize the effectiveness of people's initiatives ought to be
rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a
matter of policy and doctrine will exert every effort to nurture, protect
and promote their legitimate exercise." 43 Just a few days ago, or on
March 11, 1997, by a unanimous decision, 44 we allowed a recall election
in Caloocan City involving the mayor and ordered that he submits his right
to continue in office to the judgment of the tribunal of the people. Thus
far, we have succeeded in transforming people power from an opaque
abstraction to a robust reality. The Constitution calls us to encourage
people empowerment to blossom in full. The Court cannot halt any and
all signature campaigns to amend the Constitution without setting back
the flowering of people empowerment. More important, the Court
cannot seal the lips of people who are pro-change but not those who are
anti-change without concerting the debate on charter change into a
sterile talkaton. Democracy is enlivened by a dialogue and not by a
monologue for in a democracy nobody can claim any infallibility.
Melo and Mendoza, JJ., concur.
VITUG, J., concurring and dissenting:
The COMELEC should have dismissed, outrightly, the Delfin Petition.
It does seem to me that there is no real exigency on the part of the Court
to engross, let alone to commit, itself on all the issues raised and debated
upon by the parties. What is essential at this time would only be to
resolve whether or not the petition filed with the COMELEC, signed by
Atty. Jesus S. Delfin in his capacity as a "founding member of the
Movement for People's Initiative" and seeking through a people initiative
certain modifications on the 1987 Constitution, can properly be regarded
and given its due course. The Constitution, relative to any proposed
amendment under this method, is explicit. Section 2, Article XVII, thereof
provides:
Sec. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number
of registered voters, of which every legislative district
must be represented by at least three per centum of the
registered voters therein. No amendment under this
section shall be authorized within five years following the
ratification of this Constitution nor oftener than once
every five years thereafter.
The Congress shall provide for the implementation of the
exercise of this right.
The Delfin petition is thus utterly deficient. Instead of complying with the
constitutional imperatives, the petition would rather have much of its
burden passed on, in effect, to the COMELEC. The petition would require
COMELEC to schedule "signature gathering all over the country," to
cause the necessary publication of the petition "in newspapers of general
and local circulation," and to instruct "Municipal Election Registrars in all
Regions of the Philippines to assist petitioners and volunteers in
establishing signing stations at the time and on the dates designated for
the purpose.
I submit, even then, that the TRO earlier issued by the Court which,
consequentially, is made permanent under the ponencia should be held to
cover only the Delfin petition and must not be so understood as having
intended or contemplated to embrace the signature drive of the
Pedrosas. The grant of such a right is clearly implicit in the constitutional
mandate on people initiative.
The distinct greatness of a democratic society is that those who reign are
the governed themselves. The postulate is no longer lightly taken as just a
perceived myth but a veritable reality. The past has taught us that the
vitality of government lies not so much in the strength of those who lead
as in the consent of those who are led. The role of free speech is pivotal
but it can only have its true meaning if it comes with the correlative end
of being heard.
190
Pending a petition for a people's initiative that is sufficient in form and
substance, it behooves the Court, I most respectfully submit, to yet
refrain from resolving the question of whether or not Republic Act No.
6735 has effectively and sufficiently implemented the Constitutional
provision on right of the people to directly propose constitutional
amendments. Any opinion or view formulated by the Court at this point
would at best be only a non-binding, albeit possibly persuasive, obiter
dictum.
I vote for granting the instant petition before the Court and for clarifying
that the TRO earlier issued by the Court did not prescribe the exercise by
the Pedrosas of their right to campaign for constitutional amendments.
FRANCISCO, J., dissenting and concurring:
There is no question that my esteemed colleague Mr. Justice Davide has
prepared a scholarly and well-written ponencia. Nonetheless, I cannot
fully subscribe to his view that R. A. No. 6735 is inadequate to cover the
system of initiative on amendments to the Constitution.
To begin with, sovereignty under the constitution, resides in the people
and all government authority emanates from them.1 Unlike our previous
constitutions, the present 1987 Constitution has given more significance
to this declaration of principle for the people are now vested with power
not only to propose, enact or reject any act or law passed by Congress or
by the local legislative body, but to propose amendments to the
constitution as well.2 To implement these constitutional edicts, Congress
in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative
and Referendum Act". This law, to my mind, amply covers an initiative on
the constitution. The contrary view maintained by petitioners is based
principally on the alleged lack of sub-title in the law on initiative to amend
the constitution and on their allegation that:
Republic Act No. 6735 provides for the effectivity of the
law after publication in print media. [And] [t]his indicates
that Republic Act No. 6735 covers only laws and not
constitutional amendments, because constitutional
amendments take effect upon ratification not after
publication.3
which allegation manifests petitioners' selective interpretation of
the law, for under Section 9 of Republic Act No. 6735 on the
Effectivity of Initiative or Referendum Proposition paragraph (b)
thereof is clear in providing that:
The proposition in an initiative on the constitution approved by a majority
of the votes cast in the plebiscite shall become effective as to the day of
the plebiscite.
It is a rule that every part of the statute must be interpreted with
reference the context, i.e., that every part of the statute must be
construed together with the other parts and kept subservient to the
general intent of the whole enactment. 4 Thus, the provisions of Republic
Act No. 6735 may not be interpreted in isolation. The legislative intent
behind every law is to be extracted from the statute as a whole.5
In its definition of terms, Republic Act No. 6735 defines initiative as "the
power of the people to propose amendments to the constitution or to
propose and enact legislations through an election called for the purpose".6
The same section, in enumerating the three systems of initiative, included
an "initiative on the constitution which refers to a petition proposing
amendments to the constitution"7 Paragraph (e) again of Section 3
defines "plebiscite" as "the electoral process by which an initiative on the
constitution is approved or rejected by the people" And as to the material
requirements for an initiative on the Constitution, Section 5(b) distinctly
enumerates the following:
A petition for an initiative on the 1987 Constitution must
have at least twelve per centum (12%) of the total number
of the registered voters as signatories, of which every
legislative district must be represented by at least three
per centum (3%) of the registered voters therein. Initiative
on the constitution may be exercised only after five (5)
191
 years from the ratification of the 1987 Constitution and
only once every five years thereafter.
These provisions were inserted, on purpose, by Congress the
intent being to provide for the implementation of the right to
propose an amendment to the Constitution by way of initiative.
"A legal provision", the Court has previously said, "must not be
construed as to be a useless surplusage, and accordingly,
meaningless, in the sense of adding nothing to the law or having
no effect whatsoever thereon". 8 That this is the legislative intent
is further shown by the deliberations in Congress, thus:
. . . More significantly, in the course of the consideration
of the Conference Committee Report on the disagreeing
provisions of Senate Bill No. 17 and House Bill No. 21505, it
was noted:
MR. ROCO. On the Conference Committee
Report on the disagreeing provisions
between Senate Bill No. 17 and the
consolidated House Bill No. 21505 which
refers to the system providing for the
initiative and referendum, fundamentally,
Mr. Speaker, we consolidated the Senate
and the House versions, so both versions
are totally intact in the bill. The Senators
ironically provided for local initiative and
referendum and the House of
Representatives correctly provided for
initiative and referendum an the
Constitution and on national legislation.
I move that we approve the consolidated
bill.
MR. ALBANO, Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the
pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished
sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. What does
the sponsor say?
MR. ROCO. Willingly, Mr. Speaker.
THE SPEAKER PRO TEMPORE. The
Gentleman will please proceed.
MR. ALBANO. I heard the sponsor say that
the only difference in the two bills was
that in the Senate version there was a
provision for local initiative and
referendum, whereas the House version
has none.
MR. ROCO. In fact, the Senate version
provided purely for local initiative and
referendum, whereas in the House
version, we provided purely for national
and constitutional legislation.
MR. ALBANO. Is it our understanding,
therefore, that the two provisions were
incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a
complete initiative and referendum both
in the constitutional amendment and
national legislation.
192
 MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as
municipal resolutions?
MR. ROCO. Down to barangay, Mr.
Speaker.
MR. ALBANO. And this initiative and
referendum is in consonance with the
provision of the Constitution to enact the
enabling law, so that we shall have a
system which can be done every five
years. Is it five years in the provision of the
Constitution?
MR. ROCO. That is correct, Mr. Speaker.
For constitutional amendments to the
1987 Constitution, it is every five years."
(Id. [Journal and Record of the House of
Representatives], Vol. VIII, 8 June 1989, p.
960; quoted in Garcia v. Comelec, 237
SCRA 279, 292-293 [1994]; emphasis
supplied)
. . . The Senate version of the Bill may not have
comprehended initiatives on the Constitution. When
consolidated, though, with the House version of the Bill
and as approved and enacted into law, the proposal
included initiative on both the Constitution and ordinary
laws.9
Clearly then, Republic Act No. 6735 covers an initiative on the
constitution. Any other construction as what petitioners foist
upon the Court constitute a betrayal of the intent and spirit
behind the enactment.
At any rate, I agree with the ponencia that the Commission on Elections,
at present, cannot take any action (such as those contained in the
Commission's orders dated December 6, 9, and 12, 1996 [Annexes B, C
and B-1]) indicative of its having already assumed jurisdiction over private
respondents' petition. This is so because from the tenor of Section 5 (b)
of R.A. No. 6735 it would appear that proof of procurement of the
required percentage of registered voters at the time the petition for
initiative is filed, is a jurisdictional requirement.
Thus:
A petition for an initiative on the 1987 Constitution must
have at least twelve per centum (12%) of the total number
of registered voters as signatories, of which every
legislative district must be represented by at least three
per centum (3%) of the registered voters therein. Initiative
on the Constitution may be exercised only after five (5)
years from the ratification of the 1987 Constitution and
only once every five (5) years thereafter.
Here private respondents' petition is unaccompanied by the
required signatures. This defect notwithstanding, it is without
prejudice to the refiling of their petition once compliance with the
required percentage is satisfactorily shown by private
respondents. In the absence, therefore, of an appropriate
petition before the Commission on Elections, any determination
of whether private respondents' proposal constitutes an
amendment or revision is premature.
ACCORDINGLY, I take exception to the conclusion reached in the
ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a
people's initiative to propose amendments to the Constitution. I,
however, register my concurrence with the dismissal, in the meantime, of
private respondents' petition for initiative before public respondent
Commission on Elections until the same be supported by proof of strict
compliance with Section 5 (b) of R.A. No. 6735.
Melo and Mendoza, JJ., concur.
193

PANGANIBAN, J., concurring and dissenting:
Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for
the majority, holds that:
(1) The Comelec acted without jurisdiction or with grave abuse of
discretion in entertaining the "initiatory" Delfin Petition.
(2) While the Constitution allows amendments to "be directly proposed
by the people through initiative," there is no implementing law for the
purpose. RA 6735 is "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the
Constitution is concerned."
(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and
regulations on the conduct of initiative on amendments to the
Constitution, is void."
I concur with the first item above. Until and unless an initiatory petition
can show the required number of signatures in this case, 12% of all the
registered voters in the Philippines with at least 3% in every legislative
district no public funds may be spent and no government resources
may be used in an initiative to amend the Constitution. Verily, the
Comelec cannot even entertain any petition absent such signatures.
However, I dissent most respectfully from the majority's two other rulings.
Let me explain.
Under the above restrictive holdings espoused by the Court's majority, the
Constitution cannot be amended at all through a people's initiative. Not by
Delfin, not by Pirma, not by anyone, not even by all the voters of the
country acting together. This decision will effectively but unnecessarily
curtail, nullify, abrogate and render inutile the people's right to change the
basic law. At the very least, the majority holds the right hostage to
congressional discretion on whether to pass a new law to implement it,
when there is already one existing at present. This right to amend through
initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the
Constitution, as follows:
Sec. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number
of registered voters, of which every legislative district
must be represented by at least three per centum of the
registered voters therein. No amendment under this
section shall be authorized within five years following the
ratification of this Constitution nor oftener than once
every five years thereafter.
With all due respect, I find the majority's position all too sweeping and all
too extremist. It is equivalent to burning the whole house to exterminate
the rats, and to killing the patient to relieve him of pain. What Citizen
Delfin wants the Comelec to do we should reject. But we should not
thereby preempt any future effort to exercise the right of initiative
correctly and judiciously. The fact that the Delfin Petition proposes a misuse
of initiative does not justify a ban against its proper use. Indeed, there is a
right way to do the right thing at the right time and for the right reason.
Taken Together and Interpreted Properly, the Constitution, RA 6735
and Comelec Resolution 2300 Are Sufficient to Implement
Constitutional Initiatives
While RA 6735 may not be a perfect law, it was as the majority openly
concedes intended by the legislature to cover and, I respectfully
submit, it contains enough provisions to effectuate an initiative on the
Constitution.1 I completely agree with the inspired and inspiring opinions
of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that
RA 6735, the Roco law on initiative, sufficiently implements the right of
the people to initiate amendments to the Constitution. Such views, which
I shall no longer repeat nor elaborate on, are thoroughly consistent with
this Court's unanimous en banc rulings in Subic Bay Metropolitan Authority
vs. Commission on Elections, 2 that "provisions for initiative . . . are (to be)
liberally construed to effectuate their purposes, to facilitate and not
hamper the exercise by the voters of the rights granted thereby"; and in
194
Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of
people's initiatives ought to be rejected."
No law can completely and absolutely cover all administrative details. In
recognition of this, RA 6735 wisely empowered 4 the Commission on
Election "to promulgate such rules and regulations as may be necessary
to carry out the purposes of this Act." And pursuant thereto, the Comelec
issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very
words, was promulgated "to govern the conduct of initiative on the
Constitution and initiative and referendum on national and local laws,"
not by the incumbent Commission on Elections but by one then
composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E.
Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and
Magdara B. Dimaampao. All of these Commissioners who signed
Resolution 2300 have retired from the Commission, and thus we cannot
ascribe any vile motive unto them, other than an honest, sincere and
exemplary effort to give life to a cherished right of our people.
The majority argues that while Resolution 2300 is valid in regard to
national laws and local legislations, it is void in reference to constitutional
amendments. There is no basis for such differentiation. The source of and
authority for the Resolution is the same law, RA 6735.
I respectfully submit that taken together and interpreted properly and
liberally, the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and
Comelec Resolution 2300 provide more than sufficient authority to
implement, effectuate and realize our people's power to amend the
Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
I am glad the majority decided to heed our plea to lift the temporary
restraining order issued by this Court on 18 December 1996 insofar as it
prohibited Petitioner Delfin and the Spouses Pedrosa from exercising
their right of initiative. In fact, I believe that such restraining order as
against private respondents should not have been issued, in the first
place. While I agree that the Comelec should be stopped from using
public funds and government resources to help them gather signatures, I
firmly believe that this Court has no power to restrain them from
exercising their right of initiative. The right to propose amendments to
the Constitution is really a species of the right of free speech and free
assembly. And certainly, it would be tyrannical and despotic to stop
anyone from speaking freely and persuading others to conform to his/her
beliefs. As the eminent Voltaire once said, "I may disagree with what you
say, but I will defend to the death your right to say it." After all, freedom
is not really for the thought we agree with, but as Justice Holmes wrote,
"freedom for the thought that we hate."5
Epilogue
By way of epilogue, let me stress the guiding tenet of my Separate
Opinion. Initiative, like referendum and recall, is a new and treasured
feature of the Filipino constitutional system. All three are institutionalized
legacies of the world-admired EDSA people power. Like elections and
plebiscites, they are hallowed expressions of popular sovereignty. They
are sacred democratic rights of our people to be used as their final
weapons against political excesses, opportunism, inaction, oppression
and misgovernance; as well as their reserved instruments to exact
transparency, accountability and faithfulness from their chosen leaders.
While on the one hand, their misuse and abuse must be resolutely struck
down, on the other, their legitimate exercise should be carefully nurtured
and zealously protected.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et
al. and to DIRECT Respondent Commission on Elections to DISMISS the
Delfin Petition on the ground of prematurity, but not on the other
grounds relied upon by the majority. I also vote to LIFT the temporary
restraining order issued on 18 December 1996 insofar as it prohibits Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to
free speech in proposing amendments to the Constitution.
Melo and Mendoza, JJ., concur.
Footnotes
195
1 Commissioner Blas Ople.
2 Commissioner Jose Suarez.
3 I Record of the Constitutional Commission, 371, 378.
4 Section 1, Article XV of the 1935 Constitution and Section
1(1), Article XVI of the 1973 Constitution.
5 Annex "A" of Petition, Rollo, 15.
6 Later identified as the People's Initiative for Reforms,
Modernization and Action, or PIRMA for brevity.
7 These sections read:
Sec. 4. The term of office of the Senators shall be six years
and shall commence, unless otherwise provided by law, at
noon on the thirtieth day of June next following their
election.
No Senator shall serve for more than two consecutive
terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was
elected.
xxx xxx xxx
Sec. 7. The Members of the House of Representatives
shall be elected for a term of three years which shall
begin, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election.
No Member of the House of Representatives shall serve
for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of his
service for the full term for which he was elected.
8 The section reads:
Sec. 4. The President and the Vice-President shall be
elected by direct vote of the people for a term of six years
which shall begin at noon on the thirtieth day of June next
following the day of the election and shall end at noon of
the same date six years thereafter. The President shall not
be eligible for any reelection. No person who has
succeeded as President and has served as such for more
than four years shall be qualified for election to the same
office at any time.
No Vice-President shall serve for more than two
successive terms. Voluntary renunciation of the office for
any length or time shall not be considered as an
interruption in the continuity of the service for the full
term for which he was elected.
9 The section reads:
Sec. 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall
be three years and no such official shall serve for more
than three consecutive terms. Voluntary renunciation of
the office for any length of time shall not be considered as
an interruption in the continuity of his service for the full
term for which he was elected.
10 Rollo, 19.
11 Annex "B" of Petition, Rollo, 25.
12 Order of 12 December 1996, Annex "B-1" of Petition,
Rollo, 27.
196
13 Id. (d) IBP 12 February 1997 (Id., 476);

14 Citing Araneta v. Dinglasan, 84 Phil. 368 [1949]; Sanidad (e) Senator Roco 12 February 1997 (Id.,
v. COMELEC, 73 SCRA 333 [1976]. 606);

15 Rollo, 68. (f) DIK and MABINI 12 February 1997

(Id., 465);
16 Rollo, 100.
(g) COMELEC 12 February 1997 (Id.,
17 Rollo, 130. 489);

18 A Member of the 1986 Constitutional Commission. (h) LABAN 13 February 1997 (Id., 553).

19 Section 26, Article II, Constitution. 25 Rollo, 594.

20 Citing Commissioner Ople of the Constitutional 26 Annex "D" of Roco's Motion for Intervention in this
Commission, I Record of the Constitutional Commission, case, Rollo, 184.
405.
27 Rollo, 28.
21 Rollo, 239.
28 232 SCRA 110, 134 [1994].
22 Rollo, 304.
29 II The Constitution of the Republic of the Philippines, A
23 Rollo, 568. Commentary 571 [1988].

24 These were submitted on the following dates: 30 I Record of the Constitutional Commission 370-371.

(a) Private respondent Delfin 31 January 31 Id., 371.

1997 (Rollo, 429);
32 Id., 386.
(b) Private respondents Alberto and
Carmen Pedrosa 10 February 1997 (Id., 33 Id., 391-392. (Emphasis supplied).
446);
34 Id., 386.
(c) Petitioners 12 February 1997 (Id.,
585); 35 Id., 392.

197
36 Id., 398-399.
37 Id., 399. Emphasis supplied.
38 Id., 402-403.
39 Id., 401-402.
40 Id., 410.
41 Id., 412.
42 II Record of the Constitutional Commission 559-560.
43 The Congress originally appeared as The National
Assembly. The change came about as a logical
consequence of the amended Committee Report No. 22 of
the Committee on Legislative which changed The National
Assembly to "The Congress of the Philippines" in view of
the approval of the amendment to adopt the bicameral
system (II Record of the Constitutional Commission 102-
105). The proposed new Article on the Legislative
Department was, after various amendments approved on
Second and Third Readings on 9 October 1986 (Id., 702-
703)
44 V Record of the Constitutional Commission 806.
45 See footnote No. 42.
46 As Stated by Commissioner Bernas in his interpellation
of Commissioner Suarez, footnote 28.
47 Entitled "Initiative and Referendum Act of 1987,"
introduced by then Congressmen Raul Roco, Raul del Mar
and Narciso Monfort.
48 Entitled "An Act Implementing the Constitutional
Provisions on Initiative and Referendum and for Other
Purposes," introduced by Congressmen Salvador
Escudero.
49 Entitled "An Act Providing for a System of Initiative
and Referendum, and the Exceptions Therefrom,
Whereby People in Local Government Units Can Directly
Propose and Enact Resolutions and Ordinances or
Approve or Reject Any Ordinance or Resolution Passed By
the Local Legislative Body," introduced by Senators
Gonzales, Romulo, Pimentel, Jr., and Lina, Jr.
50 IV Record of the Senate, No. 143, pp. 1509-1510.
51 VIII Journal and Record of the House of
Representatives, 957-961.
52 That section reads:
Sec. 1. Statement of Policy. The power of the people under
a system of initiative and referendum to directly propose
and enact resolutions and ordinances or approve or
reject, in whole or in part, any ordinance or resolution
passed by any local legislative body upon compliance with
the requirements of this Act is hereby affirmed,
recognized and guaranteed.
53 It must be pointed out that Senate Bill No. 17 and
House Bill No. 21505, as approved on Third Reading, did
not contain any subtitles.
54 If some confusion attended the preparation of the
subtitles resulting in the leaving out of the more
important and paramount system of initiative on
amendments to the Constitution, it was because there
was in the Bicameral Conference Committee an initial
198
agreement for the Senate panel to draft that portion on
local initiative and for the House of Representatives panel
to draft that portion covering national initiative and
initiative on the Constitution; eventually, however, the
Members thereof agreed to leave the drafting of the
consolidated bill to their staff. Thus:
CHAIRMAN GONZALES.
. . . All right, and we can agree, we can agree. So ang
mangyayari dito, ang magiging basic nito, let us not
discuss anymore kung alin ang magiging basic bill, ano,
whether it is the Senate Bill or whether it is the House Bill.
Logically it should be ours sapagkat una iyong sa amin, eh.
It is one of the first bills approved by the Senate kaya ang
number niyan, makikita mo, 17, eh. Huwag na nating pag-
usapan. Now, if you insist, really iyong features ng national
at saka constitutional, okay. Pero gagawin na nating
consolidation of both bills. (TSN, proceedings of the
Bicameral Conference Committee on 6 June 1989
submitted by Nora, R, pp. 1-4 1-5).
xxx xxx xxx
HON. ROCO. So how do we proceed from this? The staff
will consolidate.
HON. GONZALES. Gumawa lang ng isang draft. Submit it
to the Chairman, kami na ang bahalang magconsult sa
aming mga members na kung okay,
HON. ROCO. Within today?
HON. GONZALES. Within today and early tomorrow.
Hanggang Huwebes lang tayo, eh.
HON. AQUINO. Kinakailangang palusutin natin ito. Kung
mabigyan tayo ng kopya bukas and you are not objecting
naman kayo naman ganoon din.
HON. ROCO. Editing na lang because on a physical
consolidation nga ito, eh. Yung mga provisions naman
namin wala sa inyo. (TSN, proceedings of Bicameral
Conference Committee of 6 June 1989, submitted by E.S.
Bongon, pp. III-4 III-5).
55 Sec. 5(a & c), Sec. 8, Section 9(a).
56 Sections 13, 14, 15 and 16.
57 It would thus appear that the Senate's "cautious
approach" in the implementation of the system of
initiative as a mode of proposing amendments to the
Constitution, as expressed by Senator Gonzales in the
course of his sponsorship of Senate Bill No. 17 in the
Bicameral Conference Committee meeting and in his
sponsorship of the Committee's Report, might have
insidiously haunted the preparation of the consolidated
version of Senate Bill No. 17 and House Bill No. 21505. In
the first he said:
Senate Bill No. 17 recognizes the initiatives and
referendum are recent innovations in our political
system. And recognizing that, it has adopted a
cautious approach by: first, allowing them only
when the local legislative body had refused to act;
second, not more frequently than once a year;
and, third, limiting them to the national level. (I
Record of the Senate, No. 33, p. 871).
xxx xxx xxx
199
 First, as I have said Mr. President, and I am saying
for the nth time, that we are introducing a novel
and new system in politics. We have to adopt first
a cautious approach. We feel it is prudent and wise
at this point in time, to limit those powers that
may be the subject of initiatives and referendum
to those exercisable or within the authority of the
local government units. (Id., p. 880).
In the second he stated:
But at any rate, as I have said, because this is new
in our political system, the Senate decided on a
more cautious approach and limiting it only to the
local general units. (TSN of the proceedings of the
Bicameral Conference Committee on 6 June 1989,
submitted by stenographer Nora R, pp. 1-2 to 1-3).
In the last he declared:
The initiatives and referendum are new tools of
democracy; therefore, we have decided to be cautious in
our approach. Hence, 1) we limited initiative and
referendum to the local government units; 2) that
initiative can only be exercised if the local legislative
cannot be exercised more frequently that once every
year. (IV Records of the Senate, No. 143, pp. 15-9-1510).
58 Section 20, RA. No. 6735.
59 People v. Rosenthal, 68 Phil. 328 [1939]; ISAGANI A.
CRUZ, Philippine Political Law 86 [1996] (hereafter CRUZ).
60 People v. Vera, 65 Phil. 56 [1937]; CRUZ, supra, 87.
61 Pelaez v. Auditor General, 122 Phil. 965, 974 [1965].
62 Edu v. Ericta, 35 SCRA 481,497 [1970].
63 Sec. 7, COMELEC Resolution No. 2300.
64 Sec. 28, id.
65 Sec. 29, id.
66 Sec. 30, id.
PUNO, J., concurring and dissenting::
1 Agpalo, Statutory Construction, 1986 ed., p. 38, citing,
inter alia, US v. Tamparong 31 Phil. 321; Hernani v. Export
Control Committee, 100 Phil. 973; People v. Purisima, 86
SCRA 542.
2 Ibid, citing Torres v. Limjap, 56 Phil. 141.
3 Prepared and sponsored by the House Committee on
Suffrage and Electoral Reforms on the basis of H.B. No.
497 introduced by Congressmen Raul Roco, Raul del Mar
and Narciso Monfort and H.B. No. 988 introduced by
Congressman Salvador Escudero.
4 Introduced by Senators Neptali Gonzales, Alberto
Romulo, Aquilino Pimentel, Jr., and Jose Lina, Jr.
5 It was entitled "An Act Providing a System of Initiative
and Referendum and Appropriating Funds therefor.
6 Journal No. 85, February 14, 1989, p. 121.
7 Ibid.
8 The Senate Committee was chaired by Senator Neptali
Gonzales with Senators Agapito Aquino and John Osmena
200
as members. The House Committee was chaired by 17 15 SCRA 569.
Congressman Magdaleno M. Palacol with Congressmen
Raul Roco, Salvador H. Escudero III and Joaquin Chipeco, 18 Sec. 5(b), R.A. No. 6735.
Jr., as members.
19 Sec. 5(b), R.A. No. 6735.
9 Held at Constancia Room, Ciudad Fernandina,
Greenhills, San Juan, Metro Manila. 20 Sec. 7, R.A. No. 6735.

10 See Compliance submitted by intervenor Roco dated 21 Sec. 9(b), R.A. No. 6735.
January 28, 1997.
22 Sec. 8, R.A. No. 6735 in relation to Sec. 4, Art. XVII of
11 Record No. 137, June 8, 1989, pp. 960-961. the Constitution.

12 Agpalo, op cit., p. 38 citing US v. Toribio, 15 Phil 7 (1910); 23 Sec. 9(b), R.A. No. 6735.
US v. Navarro, 19 Phil 134 (1911).
24 Sec. 10, R.A. No. 6735.
13 Francisco, Statutory Construction, 3rd ed., (1968) pp.
145-146 citing Crawford, Statutory Construction, pp. 337- 25 Cruz, Philippine Political Law, 1995 ed., p. 98.
338.
26 See July 8, 1986 Debates of the Concom, p. 399.
14 Black, Handbook on the Construction and
Interpretation of the Laws (2nd ed), pp. 258-259. See also 27 1995 ed., p. 1207.
Commissioner of Custom v. Relunia, 105 Phil 875 (1959);
People v. Yabut, 58 Phil 499 (1933). 28 Cruz, op cit., p. 99.

15 Alcantara, Statutes, 1990 ed., p. 26 citing Dwarris on 29 320 US 99.

Statutes, p. 237.
30 Balbuena v. Secretary of Education, 110 Phil 150 (1910).
16 Entitled In re: Rules and Regulations Governing the
Conduct of Initiative on the Constitution, and Initiative 31 People v. Rosenthal, 68 Phil 328 (1939).
and Referendum on National and Local Laws and
promulgated on January 16, 1991 by the COMELEC with 32 Calalang v. Williams, 70 Phil 726 (1940).
Commissioner Haydee B. Yorac as Acting Chairperson and
Commissioners Alfredo E. Abueg, Jr., Leopoldo L. Africa, 33 Rubi v. Provincial Board of Mindoro, 39 Phil 669 (1919).
Andres R. Flores, Dario C. Rama and Magdara B.
Dimaampao. 34 International Hardwood v. Pangil Federation of Labor,
70 Phil 602 (1940).
201
35 Phil. Association of Colleges and Universities v.
Secretary of Education, 97 Phil 806 (1955).
36 Edu v. Ericta, 35 SCRA 481 (1990); Agustin v. Edu, 88
SCRA 195 (1979).
37 Pepsi Cola Bottling Co. vs. Municipality of Tanawan
Leyte, 69 SCRA 460 (1976).
38 Maceda v. Macaraig, 197 SCRA 771 (1991).
39 Osmena v. Orbos, 220 SCRA 703 (1993).
40 Chiongbian v. Orbos, 245 SCRA 253 (1995).
41 Garcia v. COMELEC, et al., G.R. No. 111511, October 5,
1993.
42 Garcia, et al. v. COMELEC, et al., G.R. No. 111230,
September 30, 1994.
43 Subic Bay Metropolitan Authority v. COMELEC, et al.,
G.R. No. 125416, September 26, 1996.
44 Malonzo vs. COMELEC, et al., G.R. No. 127066, March
11, 1997.
FRANCISCO, J., concurring and dissenting:
1 Article II, Section 1, 1987 Constitution.
2 Article VI, Section 32, and Article XVII, Section 2, 1987
Constitution.
3 Petition, p. 5.
4 Paras v. Commission on Elections, G.R. No. 123619,
December 4, 1996.
5 Tamayo v. Gsell, 35 Phil. 953, 980.
6 Section 3 (a), Republic Act No 6735.
7 Section 3(a) [a.1], Republic Act No 6735.
8 Uytengsu v. Republic, 95 Phil. 890, 893
9 Petition in Intervention filed by Sen. Raul Roco, pp. 15-
16.
PANGANIBAN, J., concurring and dissenting:
1 Apart from its text on "national initiative" which could
be used by analogy, RA 6735 contains sufficient provisions
covering initiative on the Constitution, which are clear
enough and speak for themselves, like:
Sec. 2. Statement of Policy. The power of the people
under a system of initiative and referendum to directly
propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolution passed by
any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized
and guaranteed.
Sec. 3. Definition of Terms. For purposes of this Act,
the following terms shall mean:
(a) "Initiative" is the power of the people
to propose amendments to the
Constitution or to propose and enact
legislation's through an election called for
the purpose.
202
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which
refers to a petition proposing
amendments to the Constitution;
a.2 Initiative on statutes which refers to a
petition proposing to enact a national
legislation; and
a.3 Initiative on local legislation which
refers to a petition proposing to enact a
regional, provincial, city, municipal, or
barangay law, resolution or ordinance.
xxx xxx xxx
(e) "Plebiscite" is the electoral process by
which an initiative on the Constitution is
approved or rejected by the people
(f) "Petition" is the written instrument
containing the proposition and the
required number of signatories. It shall be
in a form to be determined by and
submitted to the Commission on
Elections, hereinafter referred to as the
Commission
xxx xxx xxx
Sec. 5 Requirements. . . .
(b) A petition for an initiative on the 1987
Constitution must have at least twelve per
centum (12 %) of the total number of
registered voters as signatories, of which
every legislative district must be
represented by at least three per centum
(3%) of the registered voters therein.
Initiative on the Constitution may be
exercised only after five (5) years from the
ratification of the 1987 Constitution and
only once every five (5) years thereafter.
Sec. 9. Effectivity of Initiative or Referendum Proposition.
xxx xxx xxx
(b) The proposition in an initiative on the
Constitution approved by a majority of the
votes cast in the plebiscite shall become
effective as to the day of the plebiscite.
xxx xxx xxx
(c) The petition shall state the following:
c.1 contents or text of the
proposed law sought to be
enacted, approved or
rejected, amended or
repealed, as the case may
be;
c.2 the proposition;
c.3 the reason or reasons
therefor;
c.4 that it is not one of the
exceptions provided
herein;
203
 c.5 signatures of the
petitioners or registered
voters; and

c.6 an abstract or summary

proposition in not more
than one hundred (100)
words which shall be
legibly written or printed
at the top of every page of
the petition.

xxx xxx xxx

Sec. 19. Applicability of the Omnibus Election Code. The

Omnibus Election Code and other election laws, not
inconsistent with the provisions of this Act, shall apply to
all initiatives and referenda.

Sec. 20. Rules and Regulations. The Commission is

hereby empowered to promulgate such rules and
regulations as may be necessary to carry out the purposes
of this Act. (Emphasis supplied)

2 G.R. No. 125416, September 26, 1996.

3 237 SCRA 279, 282, September 30, 1994.

4 Sec. 20, R.A. 6735.

5 United States vs. Rosika Schwimmer, 279 U.S. 644, 655

(1929).

204
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH
6,327,952 REGISTERED VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
x--------------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x ------------------------------------------------------ x
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L.
QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P.
MEDINA, JR., Intervenors.
x------------------------------------------------------ x
ATTY. PETE QUIRINO QUADRA, Intervenor.
x--------------------------------------------------------x
BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo,
BAYAN MUNA represented by its Chairperson Dr. Reynaldo Lesaca,
KILUSANG MAYO UNO represented by its Secretary General Joel
Maglunsod, HEAD represented by its Secretary General Dr. Gene Alzona
Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito
Cabillas, MIGRANTE represented by its Chairperson Concepcion Bragas-
Regalado, GABRIELA represented by its Secretary General Emerenciana
de Jesus, GABRIELA WOMEN'S PARTY represented by Sec. Gen. Cristina
Palabay, ANAKBAYAN represented by Chairperson Eleanor de Guzman,
LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer
Crisostomo Palabay, JOJO PINEDA of the League of Concerned
Professionals and Businessmen, DR. DARBY SANTIAGO of the Solidarity
of Health Against Charter Change, DR. REGINALD PAMUGAS of Health
Action for Human Rights, Intervenors.
x--------------------------------------------------------x
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA
HONTIVEROS-BARAQUEL, Intervenors.
x--------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor.
x ------------------------------------------------------- x
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
x---------------------------------------------------------x
LUWALHATI RICASA ANTONINO, Intervenor.
x ------------------------------------------------------- x
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.
ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M.
BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and
AMADO GAT INCIONG, Intervenors.
x ------------------------------------------------------- x
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA,
Intervenors.
x -------------------------------------------------------- x
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION
(PTGWO) and MR. VICTORINO F. BALAIS, Intervenors.
x -------------------------------------------------------- x
205
SENATE OF THE PHILIPPINES, represented by its President, MANUEL
VILLAR, JR., Intervenor.
x ------------------------------------------------------- x
SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.
x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT,
ANTONIO L. SALVADOR, and RANDALL TABAYOYONG, Intervenors.
x -------------------------------------------------------- x
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE
CHAPTERS, Intervenors.
x --------------------------------------------------------x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS
SERGIO R. OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA,
ALFREDO S. LIM and PANFILO LACSON, Intervenors.
x -----------------------------------------------------x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO,
Intervenors.
x -----------------------------------------------------x
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V.
SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S.
ABALOS, SR., and Commissioners RESURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V.
SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter Doe,,
Respondent.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006
of the Commission on Elections ("COMELEC") denying due course to an
initiative petition to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L.
Lambino and Erico B. Aumentado ("Lambino Group"), with other groups1
and individuals, commenced gathering signatures for an initiative petition
to change the 1987 Constitution. On 25 August 2006, the Lambino Group
filed a petition with the COMELEC to hold a plebiscite that will ratify their
initiative petition under Section 5(b) and (c)2 and Section 73 of Republic
Act No. 6735 or the Initiative and Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of
6,327,952 individuals constituting at least twelve per centum (12%) of all
registered voters, with each legislative district represented by at least
three per centum (3%) of its registered voters. The Lambino Group also
claimed that COMELEC election registrars had verified the signatures of
the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by
modifying Sections 1-7 of Article VI (Legislative Department)4 and
206
Sections 1-4 of Article VII (Executive Department)5 and by adding Article
XVIII entitled "Transitory Provisions."6 These proposed changes will shift
the present Bicameral-Presidential system to a Unicameral-Parliamentary
form of government. The Lambino Group prayed that after due
publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF
THE 1987 CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL
TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with
the COMELEC indicating modifications in the proposed Article XVIII
(Transitory Provisions) of their initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due
course to the Lambino Group's petition for lack of an enabling law
governing initiative petitions to amend the Constitution. The COMELEC
invoked this Court's ruling in Santiago v. Commission on Elections8
declaring RA 6735 inadequate to implement the initiative clause on
proposals to amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs
of certiorari and mandamus to set aside the COMELEC Resolution of 31
August 2006 and to compel the COMELEC to give due course to their
initiative petition. The Lambino Group contends that the COMELEC
committed grave abuse of discretion in denying due course to their
petition since Santiago is not a binding precedent. Alternatively, the
Lambino Group claims that Santiago binds only the parties to that case,
and their petition deserves cognizance as an expression of the "will of the
sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court
require respondent COMELEC Commissioners to show cause why they
should not be cited in contempt for the COMELEC's verification of
signatures and for "entertaining" the Lambino Group's petition despite
the permanent injunction in Santiago. The Court treated the Binay
Group's petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General
joined causes with the petitioners, urging the Court to grant the petition
despite the Santiago ruling. The Solicitor General proposed that the Court
treat RA 6735 and its implementing rules "as temporary devises to
implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings
supporting or opposing the Lambino Group's petition. The supporting
intervenors10 uniformly hold the view that the COMELEC committed grave
abuse of discretion in relying on Santiago. On the other hand, the
opposing intervenors11 hold the contrary view and maintain that Santiago
is a binding precedent. The opposing intervenors also challenged (1) the
Lambino Group's standing to file the petition; (2) the validity of the
signature gathering and verification process; (3) the Lambino Group's
compliance with the minimum requirement for the percentage of voters
supporting an initiative petition under Section 2, Article XVII of the 1987
Constitution;12 (4) the nature of the proposed changes as revisions and
not mere amendments as provided under Section 2, Article XVII of the
1987 Constitution; and (5) the Lambino Group's compliance with the
requirement in Section 10(a) of RA 6735 limiting initiative petitions to only
one subject.
The Court heard the parties and intervenors in oral arguments on 26
September 2006. After receiving the parties' memoranda, the Court
considered the case submitted for resolution.
The Issues
The petitions raise the following issues:
207
1. Whether the Lambino Group's initiative petition complies with Section
2, Article XVII of the Constitution on amendments to the Constitution
through a people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA
6735 "incomplete, inadequate or wanting in essential terms and
conditions" to implement the initiative clause on proposals to amend the
Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying
due course to the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic
requirements of the Constitution for conducting a people's initiative.
Thus, there is even no need to revisit Santiago, as the present petition
warrants dismissal based alone on the Lambino Group's glaring failure to
comply with the basic requirements of the Constitution. For following the
Court's ruling in Santiago, no grave abuse of discretion is attributable to
the Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the
Constitution on Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional
provision that allows a people's initiative to propose amendments to the
Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters
of which every legislative district must be represented by at least
three per centum of the registered voters therein. x x x x
(Emphasis supplied)
The deliberations of the Constitutional Commission vividly explain the
meaning of an amendment "directly proposed by the people through
initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some
voters want to propose a constitutional amendment. Is the draft
of the proposed constitutional amendment ready to be shown to
the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam
President.
MR. RODRIGO: What does the sponsor mean? The draft is ready
and shown to them before they sign. Now, who prepares the
draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a
draft shown to them and they are asked whether or not they
want to propose this constitutional amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that
proposal and pass it around for signature.13 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of the
proposed constitutional amendment" should be "ready and shown" to
the people "before" they sign such proposal. The framers plainly stated
that "before they sign there is already a draft shown to them." The
framers also "envisioned" that the people should sign on the proposal
itself because the proponents must "prepare that proposal and pass it
around for signature."
The essence of amendments "directly proposed by the people through
initiative upon a petition" is that the entire proposal on its face is a
petition by the people. This means two essential elements must be
present. First, the people must author and thus sign the entire proposal.
208
No agent or representative can sign on their behalf. Second, as an
initiative upon a petition, the proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed
amendments is first shown to the people who express their assent by
signing such complete proposal in a petition. Thus, an amendment is
"directly proposed by the people through initiative upon a petition" only
if the people sign on a petition that contains the full text of the
proposed amendments.
The full text of the proposed amendments may be either written on the
face of the petition, or attached to it. If so attached, the petition must
state the fact of such attachment. This is an assurance that every one of
the several millions of signatories to the petition had seen the full text of
the proposed amendments before signing. Otherwise, it is physically
impossible, given the time constraint, to prove that every one of the
millions of signatories had seen the full text of the proposed
amendments before signing.
The framers of the Constitution directly borrowed14 the concept of
people's initiative from the United States where various State
constitutions incorporate an initiative clause. In almost all States15 which
allow initiative petitions, the unbending requirement is that the people
must first see the full text of the proposed amendments before they
sign to signify their assent, and that the people must sign on an initiative
petition that contains the full text of the proposed amendments.16
The rationale for this requirement has been repeatedly explained in
several decisions of various courts. Thus, in Capezzuto v. State Ballot
Commission, the Supreme Court of Massachusetts, affirmed by the First
Circuit Court of Appeals, declared:
[A] signature requirement would be meaningless if the person
supplying the signature has not first seen what it is that he or
she is signing. Further, and more importantly, loose
interpretation of the subscription requirement can pose a
significant potential for fraud. A person permitted to describe
orally the contents of an initiative petition to a potential signer,
without the signer having actually examined the petition, could
easily mislead the signer by, for example, omitting, downplaying,
or even flatly misrepresenting, portions of the petition that might
not be to the signer's liking. This danger seems particularly acute
when, in this case, the person giving the description is the
drafter of the petition, who obviously has a vested interest in
seeing that it gets the requisite signatures to qualify for the
ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments
by initiative commonly are described in similar terms. x x x (The
purpose of the full text requirement is to provide sufficient
information so that registered voters can intelligently evaluate
whether to sign the initiative petition."); x x x (publication of full
text of amended constitutional provision required because it is
"essential for the elector to have x x x the section which is
proposed to be added to or subtracted from. If he is to vote
intelligently, he must have this knowledge. Otherwise in many
instances he would be required to vote in the dark.") (Emphasis
supplied)
Moreover, "an initiative signer must be informed at the time of signing of
the nature and effect of that which is proposed" and failure to do so is
"deceptive and misleading" which renders the initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that
the petition must set forth the full text of the proposed amendments.
However, the deliberations of the framers of our Constitution clearly
show that the framers intended to adopt the relevant American
jurisprudence on people's initiative. In particular, the deliberations of the
Constitutional Commission explicitly reveal that the framers intended
that the people must first see the full text of the proposed amendments
before they sign, and that the people must sign on a petition containing
such full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative
and Referendum Act that the Lambino Group invokes as valid, requires
that the people must sign the "petition x x x as signatories."
209
The proponents of the initiative secure the signatures from the people. UNICAMERAL-PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER
The proponents secure the signatures in their private capacity and not as TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN
public officials. The proponents are not disinterested parties who can GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY
impartially explain the advantages and disadvantages of the proposed PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO
amendments to the people. The proponents present favorably their ANOTHER?"
proposal to the people and do not present the arguments against their
proposal. The proponents, or their supporters, often pay those who I hereby APPROVE the proposed amendment to the 1987 Constitution. My
gather the signatures. signature herein which shall form part of the petition for initiative to amend
the Constitution signifies my support for the filing thereof.
Thus, there is no presumption that the proponents observed the
constitutional requirements in gathering the signatures. The proponents Precinct Name Address Birthdate Signature
bear the burden of proving that they complied with the constitutional Number
requirements in gathering the signatures - that the petition contained, or Last Name, First MM/DD/YY
incorporated by attachment, the full text of the proposed amendments. Name, M.I.
1
The Lambino Group did not attach to their present petition with this
2
Court a copy of the paper that the people signed as their initiative
petition. The Lambino Group submitted to this Court a copy of a 3
signature sheet20 after the oral arguments of 26 September 2006 when 4
they filed their Memorandum on 11 October 2006. The signature sheet 5
with this Court during the oral arguments was the signature sheet 6
attached21 to the opposition in intervention filed on 7 September 2006 by 7
intervenor Atty. Pete Quirino-Quadra.
8
9
The signature sheet attached to Atty. Quadra's opposition and the
signature sheet attached to the Lambino Group's Memorandum are the 10
same. We reproduce below the signature sheet in full: _________________ _________________ __________
Barangay Official Witness Witness
Province: City/Municipality: No. of (Print Name and Sign) (Print Name and Sign) (Print Nam
Legislative District: Barangay:
Verified
There is not a single word, phrase, or sentence of text of the Lambino
Group's proposed changes in the signature sheet. Neither does the
Signatures:
signature sheet state that the text of the proposed changes is attached
to it. Petitioner Atty. Raul Lambino admitted this during the oral
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI arguments before this Court on 26 September 2006.
AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A

210
The signature sheet merely asks a question whether the people approve
a shift from the Bicameral-Presidential to the Unicameral-Parliamentary
system of government. The signature sheet does not show to the people
the draft of the proposed changes before they are asked to sign the
signature sheet. Clearly, the signature sheet is not the "petition" that the
framers of the Constitution envisioned when they formulated the
initiative clause in Section 2, Article XVII of the Constitution.
Petitioner Atty. Lambino, however, explained that during the signature-
gathering from February to August 2006, the Lambino Group circulated,
together with the signature sheets, printed copies of the Lambino
Group's draft petition which they later filed on 25 August 2006 with the
COMELEC. When asked if his group also circulated the draft of their
amended petition filed on 30 August 2006 with the COMELEC, Atty.
Lambino initially replied that they circulated both. However, Atty.
Lambino changed his answer and stated that what his group circulated
was the draft of the 30 August 2006 amended petition, not the draft of
the 25 August 2006 petition.
The Lambino Group would have this Court believe that they prepared the
draft of the 30 August 2006 amended petition almost seven months
earlier in February 2006 when they started gathering signatures.
Petitioner Erico B. Aumentado's "Verification/Certification" of the 25
August 2006 petition, as well as of the 30 August 2006 amended petition,
filed with the COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended]
Petition in my personal capacity as a registered voter, for and on
behalf of the Union of Local Authorities of the Philippines, as
shown by ULAP Resolution No. 2006-02 hereto attached, and as
representative of the mass of signatories hereto. (Emphasis
supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-
02 to the present petition. However, the "Official Website of the Union of
Local Authorities of the Philippines"22 has posted the full text of
Resolution No. 2006-02, which provides:
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S
CONSULTATIVE COMMISSION ON CHARTER CHANGE THROUGH
PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF
AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of
the Philippines (ULAP) to adopt a common stand on the approach
to support the proposals of the People's Consultative
Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda
of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms as embodied in the ULAP Joint Declaration
for Constitutional Reforms signed by the members of the ULAP
and the majority coalition of the House of Representatives in
Manila Hotel sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter
Change created by Her Excellency to recommend amendments to
the 1987 Constitution has submitted its final report sometime in
December 2005;
WHEREAS, the ULAP is mindful of the current political
developments in Congress which militates against the use of the
expeditious form of amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members
and the failure of Congress to amend the Constitution as a
constituent assembly, ULAP has unanimously agreed to pursue
the constitutional reform agenda through People's Initiative and
Referendum without prejudice to other pragmatic means to
pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT
ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL
211
 AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE
PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S
INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE
1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting
held on 14 January 2006 at the Century Park Hotel, Manila.23
(Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado
to prepare the 25 August 2006 petition, or the 30 August 2006 amended
petition, filed with the COMELEC. ULAP Resolution No. 2006-02
"support(s) the porposals (sic) of the Consulatative (sic) Commission on
Charter Change through people's initiative and referendum as a mode of
amending the 1987 Constitution." The proposals of the Consultative
Commission24 are vastly different from the proposed changes of the
Lambino Group in the 25 August 2006 petition or 30 August 2006
amended petition filed with the COMELEC.
For example, the proposed revisions of the Consultative Commission
affect all provisions of the existing Constitution, from the Preamble to
the Transitory Provisions. The proposed revisions have profound impact
on the Judiciary and the National Patrimony provisions of the existing
Constitution, provisions that the Lambino Group's proposed changes do
not touch. The Lambino Group's proposed changes purport to affect only
Articles VI and VII of the existing Constitution, including the introduction
of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more
than six months before the filing of the 25 August 2006 petition or the 30
August 2006 amended petition with the COMELEC. However, ULAP
Resolution No. 2006-02 does not establish that ULAP or the Lambino
Group caused the circulation of the draft petition, together with the
signature sheets, six months before the filing with the COMELEC. On the
contrary, ULAP Resolution No. 2006-02 casts grave doubt on the
Lambino Group's claim that they circulated the draft petition together
with the signature sheets. ULAP Resolution No. 2006-02 does not refer
at all to the draft petition or to the Lambino Group's proposed changes.
In their Manifestation explaining their amended petition before the
COMELEC, the Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the
proposed amendments alleged in the Petition, more specifically,
paragraph 3 of Section 4 and paragraph 2 of Section 5 of the
Transitory Provisions were inaccurately stated and failed to
correctly reflect their proposed amendments.
The Lambino Group did not allege that they were amending the petition
because the amended petition was what they had shown to the people
during the February to August 2006 signature-gathering. Instead, the
Lambino Group alleged that the petition of 25 August 2006 "inaccurately
stated and failed to correctly reflect their proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the
30 August 2006 amended petition with the COMELEC that they circulated
printed copies of the draft petition together with the signature sheets.
Likewise, the Lambino Group did not allege in their present petition
before this Court that they circulated printed copies of the draft petition
together with the signature sheets. The signature sheets do not also
contain any indication that the draft petition is attached to, or circulated
with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions
that the Lambino Group first claimed that they circulated the "petition for
initiative filed with the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there
is not (sic) fraud, a signer who did not read the measure
attached to a referendum petition cannot question his signature
on the ground that he did not understand the nature of the act."
[82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.]
Thus, the registered voters who signed the signature sheets
212
 circulated together with the petition for initiative filed with the
COMELEC below, are presumed to have understood the
proposition contained in the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the
petition for initiative filed with the COMELEC" appears an afterthought,
made after the intervenors Integrated Bar of the Philippines (Cebu City
Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out
that the signature sheets did not contain the text of the proposed
changes. In their Consolidated Reply, the Lambino Group alleged that
they circulated "the petition for initiative" but failed to mention the
amended petition. This contradicts what Atty. Lambino finally stated
during the oral arguments that what they circulated was the draft of the
amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that
"a signer who did not read the measure attached to a referendum
petition cannot question his signature on the ground that he did not
understand the nature of the act." The Lambino Group quotes an
authority that cites a proposed change attached to the petition signed by
the people. Even the authority the Lambino Group quotes requires that
the proposed change must be attached to the petition. The same
authority the Lambino Group quotes requires the people to sign on the
petition itself.
Indeed, it is basic in American jurisprudence that the proposed
amendment must be incorporated with, or attached to, the initiative
petition signed by the people. In the present initiative, the Lambino
Group's proposed changes were not incorporated with, or attached to,
the signature sheets. The Lambino Group's citation of Corpus Juris
Secundum pulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed,
circulated, from February to August 2006 during the signature-gathering
period, the draft of the petition or amended petition they filed later with
the COMELEC. The Lambino Group are less than candid with this Court in
their belated claim that they printed and circulated, together with the
signature sheets, the petition or amended petition. Nevertheless, even
assuming the Lambino Group circulated the amended petition during the
signature-gathering period, the Lambino Group admitted circulating
only very limited copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they
printed only 100,000 copies of the draft petition they filed more than six
months later with the COMELEC. Atty. Lambino added that he also asked
other supporters to print additional copies of the draft petition but he
could not state with certainty how many additional copies the other
supporters printed. Atty. Lambino could only assure this Court of the
printing of 100,000 copies because he himself caused the printing of
these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006,
the Lambino Group expressly admits that "petitioner Lambino initiated
the printing and reproduction of 100,000 copies of the petition for
initiative x x x."25 This admission binds the Lambino Group and
establishes beyond any doubt that the Lambino Group failed to show
the full text of the proposed changes to the great majority of the people
who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have
received with certainty one copy each of the petition, assuming a 100
percent distribution with no wastage. If Atty. Lambino and company
attached one copy of the petition to each signature sheet, only 100,000
signature sheets could have circulated with the petition. Each signature
sheet contains space for ten signatures. Assuming ten people signed each
of these 100,000 signature sheets with the attached petition, the
maximum number of people who saw the petition before they signed the
signature sheets would not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically
impossible for all or a great majority of the 6.3 million signatories to have
seen the petition before they signed the signature sheets. The
inescapable conclusion is that the Lambino Group failed to show to the
6.3 million signatories the full text of the proposed changes. If ever, not
more than one million signatories saw the petition before they signed the
signature sheets.
213
In any event, the Lambino Group's signature sheets do not contain the
full text of the proposed changes, either on the face of the signature
sheets, or as attachment with an indication in the signature sheet of such
attachment. Petitioner Atty. Lambino admitted this during the oral
arguments, and this admission binds the Lambino Group. This fact is also
obvious from a mere reading of the signature sheet. This omission is
fatal. The failure to so include the text of the proposed changes in the
signature sheets renders the initiative void for non-compliance with the
constitutional requirement that the amendment must be "directly
proposed by the people through initiative upon a petition." The
signature sheet is not the "petition" envisioned in the initiative clause of
the Constitution.
For sure, the great majority of the 6.3 million people who signed the
signature sheets did not see the full text of the proposed changes before
signing. They could not have known the nature and effect of the
proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and
thus members of Parliament can be re-elected indefinitely;26
2. The interim Parliament can continue to function indefinitely
until its members, who are almost all the present members of
Congress, decide to call for new parliamentary elections. Thus,
the members of the interim Parliament will determine the
expiration of their own term of office; 27
3. Within 45 days from the ratification of the proposed changes,
the interim Parliament shall convene to propose further
amendments or revisions to the Constitution.28
These three specific amendments are not stated or even indicated in the
Lambino Group's signature sheets. The people who signed the signature
sheets had no idea that they were proposing these amendments. These
three proposed changes are highly controversial. The people could not
have inferred or divined these proposed changes merely from a reading
or rereading of the contents of the signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and
his group assured the people during the signature-gathering that the
elections for the regular Parliament would be held during the 2007 local
elections if the proposed changes were ratified before the 2007 local
elections. However, the text of the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found
in the amended petition, states:
Section 5(2). The interim Parliament shall provide for the election
of the members of Parliament, which shall be synchronized and
held simultaneously with the election of all local government
officials. x x x x (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament
will be held simultaneously with the 2007 local elections. This section
merely requires that the elections for the regular Parliament shall be held
simultaneously with the local elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the
proposed changes, could have easily written the word "next" before the
phrase "election of all local government officials." This would have
insured that the elections for the regular Parliament would be held in the
next local elections following the ratification of the proposed changes.
However, the absence of the word "next" allows the interim Parliament
to schedule the elections for the regular Parliament simultaneously with
any future local elections.
Thus, the members of the interim Parliament will decide the expiration of
their own term of office. This allows incumbent members of the House of
Representatives to hold office beyond their current three-year term of
office, and possibly even beyond the five-year term of office of regular
members of the Parliament. Certainly, this is contrary to the
representations of Atty. Lambino and his group to the 6.3 million people
who signed the signature sheets. Atty. Lambino and his group deceived
the 6.3 million signatories, and even the entire nation.
214
This lucidly shows the absolute need for the people to sign an initiative
petition that contains the full text of the proposed amendments to avoid
fraud or misrepresentation. In the present initiative, the 6.3 million
signatories had to rely on the verbal representations of Atty. Lambino
and his group because the signature sheets did not contain the full text of
the proposed changes. The result is a grand deception on the 6.3 million
signatories who were led to believe that the proposed changes would
require the holding in 2007 of elections for the regular Parliament
simultaneously with the local elections.
The Lambino Group's initiative springs another surprise on the people
who signed the signature sheets. The proposed changes mandate the
interim Parliament to make further amendments or revisions to the
Constitution. The proposed Section 4(4), Article XVIII on Transitory
Provisions, provides:
Section 4(4). Within forty-five days from ratification of these
amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent with
the principles of local autonomy, decentralization and a strong
bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a
"surplusage" and the Court and the people should simply ignore it. Far
from being a surplusage, this provision invalidates the Lambino Group's
initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the
Bicameral-Presidential to the Unicameral-Parliamentary system. American
jurisprudence on initiatives outlaws this as logrolling - when the initiative
petition incorporates an unrelated subject matter in the same petition.
This puts the people in a dilemma since they can answer only either yes or
no to the entire proposition, forcing them to sign a petition that
effectively contains two propositions, one of which they may find
unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the
entire proposition and not only the unrelated subject matter. Thus, in
Fine v. Firestone,29 the Supreme Court of Florida declared:
Combining multiple propositions into one proposal constitutes
"logrolling," which, if our judicial responsibility is to mean
anything, we cannot permit. The very broadness of the proposed
amendment amounts to logrolling because the electorate cannot
know what it is voting on - the amendment's proponents'
simplistic explanation reveals only the tip of the iceberg. x x x x
The ballot must give the electorate fair notice of the proposed
amendment being voted on. x x x x The ballot language in the
instant case fails to do that. The very broadness of the proposal
makes it impossible to state what it will affect and effect and
violates the requirement that proposed amendments embrace
only one subject. (Emphasis supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v.
McAlpine,30 the Supreme Court of Alaska warned against "inadvertence,
stealth and fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the
problems that the single-subject rule was enacted to prevent are
exacerbated. There is a greater danger of logrolling, or the deliberate
intermingling of issues to increase the likelihood of an initiative's passage,
and there is a greater opportunity for "inadvertence, stealth and fraud"
in the enactment-by-initiative process. The drafters of an initiative
operate independently of any structured or supervised process. They
often emphasize particular provisions of their proposition, while
remaining silent on other (more complex or less appealing) provisions,
when communicating to the public. x x x Indeed, initiative promoters
typically use simplistic advertising to present their initiative to potential
petition-signers and eventual voters. Many voters will never read the full
text of the initiative before the election. More importantly, there is no
process for amending or splitting the several provisions in an initiative
proposal. These difficulties clearly distinguish the initiative from the
legislative process. (Emphasis supplied)
215
Thus, the present initiative appears merely a preliminary step for further
amendments or revisions to be undertaken by the interim Parliament as a
constituent assembly. The people who signed the signature sheets could
not have known that their signatures would be used to propose an
amendment mandating the interim Parliament to propose further
amendments or revisions to the Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to
compel the interim Parliament to amend or revise again the Constitution
within 45 days from ratification of the proposed changes, or before the
May 2007 elections. In the absence of the proposed Section 4(4), the
interim Parliament has the discretion whether to amend or revise again
the Constitution. With the proposed Section 4(4), the initiative
proponents want the interim Parliament mandated to immediately
amend or revise again the Constitution.
However, the signature sheets do not explain the reason for this rush in
amending or revising again so soon the Constitution. The signature
sheets do not also explain what specific amendments or revisions the
initiative proponents want the interim Parliament to make, and why there
is a need for such further amendments or revisions. The people are again
left in the dark to fathom the nature and effect of the proposed
changes. Certainly, such an initiative is not "directly proposed by the
people" because the people do not even know the nature and effect of
the proposed changes.
There is another intriguing provision inserted in the Lambino Group's
amended petition of 30 August 2006. The proposed Section 4(3) of the
Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be
members of Parliament until noon of the thirtieth day of June
2010.
After 30 June 2010, not one of the present Senators will remain as
member of Parliament if the interim Parliament does not schedule
elections for the regular Parliament by 30 June 2010. However, there is no
counterpart provision for the present members of the House of
Representatives even if their term of office will all end on 30 June 2007,
three years earlier than that of half of the present Senators. Thus, all the
present members of the House will remain members of the interim
Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter,
the Prime Minister exercises all the powers of the President. If the interim
Parliament does not schedule elections for the regular Parliament by 30
June 2010, the Prime Minister will come only from the present members
of the House of Representatives to the exclusion of the present Senators.
The signature sheets do not explain this discrimination against the
Senators. The 6.3 million people who signed the signature sheets could
not have known that their signatures would be used to discriminate
against the Senators. They could not have known that their signatures
would be used to limit, after 30 June 2010, the interim Parliament's
choice of Prime Minister only to members of the existing House of
Representatives.
An initiative that gathers signatures from the people without first
showing to the people the full text of the proposed amendments is most
likely a deception, and can operate as a gigantic fraud on the people.
That is why the Constitution requires that an initiative must be "directly
proposed by the people x x x in a petition" - meaning that the people
must sign on a petition that contains the full text of the proposed
amendments. On so vital an issue as amending the nation's fundamental
law, the writing of the text of the proposed amendments cannot be
hidden from the people under a general or special power of attorney to
unnamed, faceless, and unelected individuals.
The Constitution entrusts to the people the power to directly propose
amendments to the Constitution. This Court trusts the wisdom of the
people even if the members of this Court do not personally know the
people who sign the petition. However, this trust emanates from a
fundamental assumption: the full text of the proposed amendment is
first shown to the people before they sign the petition, not after they
have signed the petition.
216
In short, the Lambino Group's initiative is void and unconstitutional
because it dismally fails to comply with the requirement of Section 2,
Article XVII of the Constitution that the initiative must be "directly
proposed by the people through initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution
Disallowing Revision through Initiatives
A people's initiative to change the Constitution applies only to an
amendment of the Constitution and not to its revision. In contrast,
Congress or a constitutional convention can propose both amendments
and revisions to the Constitution. Article XVII of the Constitution
provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may
be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members,
or
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative x x x. (Emphasis
supplied)
Article XVII of the Constitution speaks of three modes of amending the
Constitution. The first mode is through Congress upon three-fourths vote
of all its Members. The second mode is through a constitutional
convention. The third mode is through a people's initiative.
Section 1 of Article XVII, referring to the first and second modes, applies
to "[A]ny amendment to, or revision of, this Constitution." In contrast,
Section 2 of Article XVII, referring to the third mode, applies only to
"[A]mendments to this Constitution." This distinction was intentional as
shown by the following deliberations of the Constitutional Commission:
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of the
Commission that pursuant to the mandate given to us last night,
we submitted this afternoon a complete Committee Report No. 7
which embodies the proposed provision governing the matter of
initiative. This is now covered by Section 2 of the complete
committee report. With the permission of the Members, may I
quote Section 2:
The people may, after five years from the date of the last
plebiscite held, directly propose amendments to this Constitution
thru initiative upon petition of at least ten percent of the
registered voters.
This completes the blanks appearing in the original Committee
Report No. 7. This proposal was suggested on the theory that this
matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from
the traditional modes of amending the Constitution as embodied
in Section 1. The committee members felt that this system of
initiative should be limited to amendments to the Constitution
and should not extend to the revision of the entire Constitution,
so we removed it from the operation of Section 1 of the
proposed Article on Amendment or Revision. x x x x
xxxx
MS. AQUINO: [I] am seriously bothered by providing this process
of initiative as a separate section in the Article on Amendment.
Would the sponsor be amenable to accepting an amendment in
terms of realigning Section 2 as another subparagraph (c) of
Section 1, instead of setting it up as another separate section as if
it were a self-executing provision?
217
 MR. SUAREZ: We would be amenable except that, as we clarified
a while ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the
sense that was conveyed by the Committee.
MS. AQUINO: In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to
include the process of revision; whereas, the process of initiation
to amend, which is given to the public, would only apply to
amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in
the Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam
President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's
proposed amendment on line 1 refers to "amendments." Does it
not cover the word "revision" as defined by Commissioner
Padilla when he made the distinction between the words
"amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and
"revision" should be covered by Section 1. So insofar as initiative
is concerned, it can only relate to "amendments" not "revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution
intended, and wrote, a clear distinction between "amendment" and
"revision" of the Constitution. The framers intended, and wrote, that only
Congress or a constitutional convention may propose revisions to the
Constitution. The framers intended, and wrote, that a people's initiative
may propose only amendments to the Constitution. Where the intent and
language of the Constitution clearly withhold from the people the power
to propose revisions to the Constitution, the people cannot propose
revisions even as they are empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United
States. Thus, in McFadden v. Jordan,32 the Supreme Court of California
ruled:
The initiative power reserved by the people by amendment to
the Constitution x x x applies only to the proposing and the
adopting or rejecting of 'laws and amendments to the
Constitution' and does not purport to extend to a constitutional
revision. x x x x It is thus clear that a revision of the Constitution
may be accomplished only through ratification by the people of a
revised constitution proposed by a convention called for that
purpose as outlined hereinabove. Consequently if the scope of
the proposed initiative measure (hereinafter termed 'the
measure') now before us is so broad that if such measure became
law a substantial revision of our present state Constitution would
be effected, then the measure may not properly be submitted to
the electorate until and unless it is first agreed upon by a
constitutional convention, and the writ sought by petitioner
should issue. x x x x (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the
manner in which it may be amended or revised, it can be altered
by those who favor amendments, revision, or other change only
through the use of one of the specified means. The constitution
itself recognizes that there is a difference between an
amendment and a revision; and it is obvious from an examination
of the measure here in question that it is not an amendment as
that term is generally understood and as it is used in Article IV,
Section 1. The document appears to be based in large part on the
revision of the constitution drafted by the 'Commission for
Constitutional Revision' authorized by the 1961 Legislative
218
 Assembly, x x x and submitted to the 1963 Legislative Assembly. It
failed to receive in the Assembly the two-third's majority vote of
both houses required by Article XVII, Section 2, and hence failed
of adoption, x x x.
While differing from that document in material respects, the
measure sponsored by the plaintiffs is, nevertheless, a thorough
overhauling of the present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a
measure as can be submitted to the people through the initiative.
If a revision, it is subject to the requirements of Article XVII,
Section 2(1); if a new constitution, it can only be proposed at a
convention called in the manner provided in Article XVII, Section 1.
xxxx
Similarly, in this jurisdiction there can be no dispute that a people's
initiative can only propose amendments to the Constitution since the
Constitution itself limits initiatives to amendments. There can be no
deviation from the constitutionally prescribed modes of revising the
Constitution. A popular clamor, even one backed by 6.3 million
signatures, cannot justify a deviation from the specific modes prescribed
in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No.
364:34
It is a fundamental principle that a constitution can only be
revised or amended in the manner prescribed by the instrument
itself, and that any attempt to revise a constitution in a manner
other than the one provided in the instrument is almost
invariably treated as extra-constitutional and revolutionary. x x x
x "While it is universally conceded that the people are sovereign
and that they have power to adopt a constitution and to change
their own work at will, they must, in doing so, act in an orderly
manner and according to the settled principles of constitutional
law. And where the people, in adopting a constitution, have
prescribed the method by which the people may alter or amend
it, an attempt to change the fundamental law in violation of the
self-imposed restrictions, is unconstitutional." x x x x (Emphasis
supplied)
This Court, whose members are sworn to defend and protect the
Constitution, cannot shirk from its solemn oath and duty to insure
compliance with the clear command of the Constitution that a
people's initiative may only amend, never revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an
amendment or revision of the Constitution? If the Lambino Group's
initiative constitutes a revision, then the present petition should be
dismissed for being outside the scope of Section 2, Article XVII of the
Constitution.
Courts have long recognized the distinction between an amendment and
a revision of a constitution. One of the earliest cases that recognized the
distinction described the fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a
permanent and abiding nature, and the provisions contained
therein for its revision indicate the will of the people that the
underlying principles upon which it rests, as well as the
substantial entirety of the instrument, shall be of a like
permanent and abiding nature. On the other hand, the
significance of the term "amendment" implies such an addition or
change within the lines of the original instrument as will effect an
improvement, or better carry out the purpose for which it was
framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the
constitution, like altering the principle of separation of powers or the
system of checks-and-balances. There is also revision if the change alters
the substantial entirety of the constitution, as when the change affects
substantial provisions of the constitution. On the other hand,
219
amendment broadly refers to a change that adds, reduces, or deletes
without altering the basic principle involved. Revision generally affects
several provisions of the constitution, while amendment generally affects
only the specific provision being amended.
In California where the initiative clause allows amendments but not
revisions to the constitution just like in our Constitution, courts have
developed a two-part test: the quantitative test and the qualitative test.
The quantitative test asks whether the proposed change is "so extensive
in its provisions as to change directly the 'substantial entirety' of the
constitution by the deletion or alteration of numerous existing
provisions."36 The court examines only the number of provisions affected
and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the proposed
change in the constitution. The main inquiry is whether the change will
"accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision."37 Whether there is an
alteration in the structure of government is a proper subject of inquiry.
Thus, "a change in the nature of [the] basic governmental plan" includes
"change in its fundamental framework or the fundamental powers of its
Branches."38 A change in the nature of the basic governmental plan also
includes changes that "jeopardize the traditional form of government and
the system of check and balances."39
Under both the quantitative and qualitative tests, the Lambino Group's
initiative is a revision and not merely an amendment. Quantitatively, the
Lambino Group's proposed changes overhaul two articles - Article VI on
the Legislature and Article VII on the Executive - affecting a total of 105
provisions in the entire Constitution.40 Qualitatively, the proposed
changes alter substantially the basic plan of government, from
presidential to parliamentary, and from a bicameral to a unicameral
legislature.
A change in the structure of government is a revision of the Constitution,
as when the three great co-equal branches of government in the present
Constitution are reduced into two. This alters the separation of powers
in the Constitution. A shift from the present Bicameral-Presidential
system to a Unicameral-Parliamentary system is a revision of the
Constitution. Merging the legislative and executive branches is a radical
change in the structure of government.
The abolition alone of the Office of the President as the locus of
Executive Power alters the separation of powers and thus constitutes a
revision of the Constitution. Likewise, the abolition alone of one chamber
of Congress alters the system of checks-and-balances within the
legislature and constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-
Presidential to a Unicameral-Parliamentary system, involving the abolition
of the Office of the President and the abolition of one chamber of
Congress, is beyond doubt a revision, not a mere amendment. On the
face alone of the Lambino Group's proposed changes, it is readily
apparent that the changes will radically alter the framework of
government as set forth in the Constitution. Father Joaquin Bernas, S.J.,
a leading member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and
separable provisions. The guiding original intention of an amendment is
to improve specific parts or to add new provisions deemed necessary to
meet new conditions or to suppress specific portions that may have
become obsolete or that are judged to be dangerous. In revision,
however, the guiding original intention and plan contemplates a re-
examination of the entire document, or of provisions of the document
which have over-all implications for the entire document, to determine
how and to what extent they should be altered. Thus, for instance a
switch from the presidential system to a parliamentary system would be
a revision because of its over-all impact on the entire constitutional
structure. So would a switch from a bicameral system to a unicameral
system be because of its effect on other important provisions of the
Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of
the Florida State constitution to shift from a bicameral to a unicameral
legislature. The issue turned on whether the initiative "was defective and
unauthorized where [the] proposed amendment would x x x affect
220
several other provisions of [the] Constitution." The Supreme Court of
Florida, striking down the initiative as outside the scope of the initiative
clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968
Constitution to provide for a Unicameral Legislature affects not
only many other provisions of the Constitution but provides for
a change in the form of the legislative branch of government,
which has been in existence in the United States Congress and in
all of the states of the nation, except one, since the earliest days.
It would be difficult to visualize a more revolutionary change.
The concept of a House and a Senate is basic in the American
form of government. It would not only radically change the
whole pattern of government in this state and tear apart the
whole fabric of the Constitution, but would even affect the
physical facilities necessary to carry on government.
xxxx
We conclude with the observation that if such proposed
amendment were adopted by the people at the General Election
and if the Legislature at its next session should fail to submit
further amendments to revise and clarify the numerous
inconsistencies and conflicts which would result, or if after
submission of appropriate amendments the people should refuse
to adopt them, simple chaos would prevail in the government of
this State. The same result would obtain from an amendment, for
instance, of Section 1 of Article V, to provide for only a Supreme
Court and Circuit Courts-and there could be other examples too
numerous to detail. These examples point unerringly to the
answer.
The purpose of the long and arduous work of the hundreds of
men and women and many sessions of the Legislature in bringing
about the Constitution of 1968 was to eliminate inconsistencies
and conflicts and to give the State a workable, accordant,
homogenous and up-to-date document. All of this could
disappear very quickly if we were to hold that it could be
amended in the manner proposed in the initiative petition here.43
(Emphasis supplied)
The rationale of the Adams decision applies with greater force to the
present petition. The Lambino Group's initiative not only seeks a shift
from a bicameral to a unicameral legislature, it also seeks to merge the
executive and legislative departments. The initiative in Adams did not
even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the
Florida Constitution that would be affected by the shift from a bicameral
to a unicameral legislature. In the Lambino Group's present initiative, no
less than 105 provisions of the Constitution would be affected based on
the count of Associate Justice Romeo J. Callejo, Sr.44 There is no doubt
that the Lambino Group's present initiative seeks far more radical
changes in the structure of government than the initiative in Adams.
The Lambino Group theorizes that the difference between "amendment"
and "revision" is only one of procedure, not of substance. The Lambino
Group posits that when a deliberative body drafts and proposes changes
to the Constitution, substantive changes are called "revisions" because
members of the deliberative body work full-time on the changes.
However, the same substantive changes, when proposed through an
initiative, are called "amendments" because the changes are made by
ordinary people who do not make an "occupation, profession, or
vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory
in their Memorandum:
99. With this distinction in mind, we note that the constitutional
provisions expressly provide for both "amendment" and
"revision" when it speaks of legislators and constitutional
delegates, while the same provisions expressly provide only for
"amendment" when it speaks of the people. It would seem that
the apparent distinction is based on the actual experience of the
people, that on one hand the common people in general are not
expected to work full-time on the matter of correcting the
221
 constitution because that is not their occupation, profession or
vocation; while on the other hand, the legislators and
constitutional convention delegates are expected to work full-
time on the same matter because that is their occupation,
profession or vocation. Thus, the difference between the words
"revision" and "amendment" pertain only to the process or
procedure of coming up with the corrections, for purposes of
interpreting the constitutional provisions.
100. Stated otherwise, the difference between "amendment"
and "revision" cannot reasonably be in the substance or extent
of the correction. x x x x (Underlining in the original; boldfacing
supplied)
The Lambino Group in effect argues that if Congress or a constitutional
convention had drafted the same proposed changes that the Lambino
Group wrote in the present initiative, the changes would constitute a
revision of the Constitution. Thus, the Lambino Group concedes that the
proposed changes in the present initiative constitute a revision if
Congress or a constitutional convention had drafted the changes.
However, since the Lambino Group as private individuals drafted the
proposed changes, the changes are merely amendments to the
Constitution. The Lambino Group trivializes the serious matter of
changing the fundamental law of the land.
The express intent of the framers and the plain language of the
Constitution contradict the Lambino Group's theory. Where the intent of
the framers and the language of the Constitution are clear and plainly
stated, courts do not deviate from such categorical intent and language.45
Any theory espousing a construction contrary to such intent and
language deserves scant consideration. More so, if such theory wreaks
havoc by creating inconsistencies in the form of government established
in the Constitution. Such a theory, devoid of any jurisprudential mooring
and inviting inconsistencies in the Constitution, only exposes the
flimsiness of the Lambino Group's position. Any theory advocating that a
proposed change involving a radical structural change in government
does not constitute a revision justly deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in
American jurisdictions have attempted to advance without any success.
In Lowe v. Keisling,46 the Supreme Court of Oregon rejected this theory,
thus:
Mabon argues that Article XVII, section 2, does not apply to
changes to the constitution proposed by initiative. His theory is
that Article XVII, section 2 merely provides a procedure by which
the legislature can propose a revision of the constitution, but it
does not affect proposed revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a
wholesale change to the constitution that cannot be enacted
through the initiative process. They assert that the distinction
between amendment and revision is determined by reviewing the
scope and subject matter of the proposed enactment, and that
revisions are not limited to "a formal overhauling of the
constitution." They argue that this ballot measure proposes far
reaching changes outside the lines of the original instrument,
including profound impacts on existing fundamental rights and
radical restructuring of the government's relationship with a
defined group of citizens. Plaintiffs assert that, because the
proposed ballot measure "will refashion the most basic principles
of Oregon constitutional law," the trial court correctly held that it
violated Article XVII, section 2, and cannot appear on the ballot
without the prior approval of the legislature.
We first address Mabon's argument that Article XVII, section 2(1),
does not prohibit revisions instituted by initiative. In Holmes v.
Appling, x x x, the Supreme Court concluded that a revision of the
constitution may not be accomplished by initiative, because of
the provisions of Article XVII, section 2. After reviewing Article
XVII, section1, relating to proposed amendments, the court said:
"From the foregoing it appears that Article IV, Section 1,
authorizes the use of the initiative as a means of amending the
Oregon Constitution, but it contains no similar sanction for its use
as a means of revising the constitution." x x x x
222
 It then reviewed Article XVII, section 2, relating to revisions, and
said: "It is the only section of the constitution which provides the
means for constitutional revision and it excludes the idea that an
individual, through the initiative, may place such a measure
before the electorate." x x x x
Accordingly, we reject Mabon's argument that Article XVII,
section 2, does not apply to constitutional revisions proposed by
initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which
negates the express intent of the framers and the plain language of the
Constitution.
We can visualize amendments and revisions as a spectrum, at one end
green for amendments and at the other end red for revisions. Towards
the middle of the spectrum, colors fuse and difficulties arise in
determining whether there is an amendment or revision. The present
initiative is indisputably located at the far end of the red spectrum where
revision begins. The present initiative seeks a radical overhaul of the
existing separation of powers among the three co-equal departments of
government, requiring far-reaching amendments in several sections and
articles of the Constitution.
Where the proposed change applies only to a specific provision of the
Constitution without affecting any other section or article, the change
may generally be considered an amendment and not a revision. For
example, a change reducing the voting age from 18 years to 15 years47 is
an amendment and not a revision. Similarly, a change reducing Filipino
ownership of mass media companies from 100 percent to 60 percent is an
amendment and not a revision.48 Also, a change requiring a college
degree as an additional qualification for election to the Presidency is an
amendment and not a revision.49
The changes in these examples do not entail any modification of sections
or articles of the Constitution other than the specific provision being
amended. These changes do not also affect the structure of government
or the system of checks-and-balances among or within the three
branches. These three examples are located at the far green end of the
spectrum, opposite the far red end where the revision sought by the
present petition is located.
However, there can be no fixed rule on whether a change is an
amendment or a revision. A change in a single word of one sentence of
the Constitution may be a revision and not an amendment. For example,
the substitution of the word "republican" with "monarchic" or
"theocratic" in Section 1, Article II50 of the Constitution radically overhauls
the entire structure of government and the fundamental ideological basis
of the Constitution. Thus, each specific change will have to be examined
case-by-case, depending on how it affects other provisions, as well as
how it affects the structure of government, the carefully crafted system
of checks-and-balances, and the underlying ideological basis of the
existing Constitution.
Since a revision of a constitution affects basic principles, or several
provisions of a constitution, a deliberative body with recorded
proceedings is best suited to undertake a revision. A revision requires
harmonizing not only several provisions, but also the altered principles
with those that remain unaltered. Thus, constitutions normally authorize
deliberative bodies like constituent assemblies or constitutional
conventions to undertake revisions. On the other hand, constitutions
allow people's initiatives, which do not have fixed and identifiable
deliberative bodies or recorded proceedings, to undertake only
amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the
Transitory Provisions states:
Section 2. Upon the expiration of the term of the incumbent
President and Vice President, with the exception of Sections 1, 2,
3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall
hereby be amended and Sections 18 and 24 which shall be
deleted, all other Sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatim up to 26, unless
they are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to conform
223
 with a unicameral parliamentary form of government; x x x x
(Emphasis supplied)
The basic rule in statutory construction is that if a later law is
irreconcilably inconsistent with a prior law, the later law prevails. This rule
also applies to construction of constitutions. However, the Lambino
Group's draft of Section 2 of the Transitory Provisions turns on its head
this rule of construction by stating that in case of such irreconcilable
inconsistency, the earlier provision "shall be amended to conform with a
unicameral parliamentary form of government." The effect is to freeze
the two irreconcilable provisions until the earlier one "shall be amended,"
which requires a future separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner
Atty. Lambino readily conceded during the oral arguments that the
requirement of a future amendment is a "surplusage." In short, Atty.
Lambino wants to reinstate the rule of statutory construction so that the
later provision automatically prevails in case of irreconcilable
inconsistency. However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of
the Transitory Provisions is not between a provision in Article VI of the
1987 Constitution and a provision in the proposed changes. The
inconsistency is between a provision in Article VI of the 1987 Constitution
and the "Parliamentary system of government," and the inconsistency
shall be resolved in favor of a "unicameral parliamentary form of
government."
Now, what "unicameral parliamentary form of government" do the
Lambino Group's proposed changes refer to the Bangladeshi,
Singaporean, Israeli, or New Zealand models, which are among the few
countries with unicameral parliaments? The proposed changes could not
possibly refer to the traditional and well-known parliamentary forms of
government the British, French, Spanish, German, Italian, Canadian,
Australian, or Malaysian models, which have all bicameral parliaments.
Did the people who signed the signature sheets realize that they were
adopting the Bangladeshi, Singaporean, Israeli, or New Zealand
parliamentary form of government?
This drives home the point that the people's initiative is not meant for
revisions of the Constitution but only for amendments. A shift from the
present Bicameral-Presidential to a Unicameral-Parliamentary system
requires harmonizing several provisions in many articles of the
Constitution. Revision of the Constitution through a people's initiative will
only result in gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative
is a revision and not an amendment. Thus, the present initiative is void
and unconstitutional because it violates Section 2, Article XVII of the
Constitution limiting the scope of a people's initiative to "[A]mendments
to this Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the
basic requirements of Section 2, Article XVII of the Constitution on the
conduct and scope of a people's initiative to amend the Constitution.
There is no need to revisit this Court's ruling in Santiago declaring RA
6735 "incomplete, inadequate or wanting in essential terms and
conditions" to cover the system of initiative to amend the Constitution.
An affirmation or reversal of Santiago will not change the outcome of the
present petition. Thus, this Court must decline to revisit Santiago which
effectively ruled that RA 6735 does not comply with the requirements of
the Constitution to implement the initiative clause on amendments to the
Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of
a statute if the case before the Court can be resolved on some other
grounds. Such avoidance is a logical consequence of the well-settled
doctrine that courts will not pass upon the constitutionality of a statute if
the case can be resolved on some other grounds.51
Nevertheless, even assuming that RA 6735 is valid to implement the
constitutional provision on initiatives to amend the Constitution, this will
not change the result here because the present petition violates Section
2, Article XVII of the Constitution. To be a valid initiative, the present
224
initiative must first comply with Section 2, Article XVII of the Constitution
even before complying with RA 6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which
requires that the "petition for an initiative on the 1987 Constitution must
have at least twelve per centum (12%) of the total number of registered
voters as signatories." Section 5(b) of RA 6735 requires that the people
must sign the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or
the amended petition of 30 August 2006 filed with the COMELEC. Only
Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra
signed the petition and amended petition as counsels for "Raul L.
Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the
Lambino Group, claiming to act "together with" the 6.3 million
signatories, merely attached the signature sheets to the petition and
amended petition. Thus, the petition and amended petition filed with the
COMELEC did not even comply with the basic requirement of RA 6735
that the Lambino Group claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA
6735 stating, "No petition embracing more than one (1) subject shall be
submitted to the electorate; x x x." The proposed Section 4(4) of the
Transitory Provisions, mandating the interim Parliament to propose
further amendments or revisions to the Constitution, is a subject matter
totally unrelated to the shift in the form of government. Since the
present initiative embraces more than one subject matter, RA 6735
prohibits submission of the initiative petition to the electorate. Thus,
even if RA 6735 is valid, the Lambino Group's initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing
the Lambino Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en
banc merely followed this Court's ruling in Santiago and People's Initiative
for Reform, Modernization and Action (PIRMA) v. COMELEC.52 For
following this Court's ruling, no grave abuse of discretion is attributable
to the COMELEC. On this ground alone, the present petition warrants
outright dismissal. Thus, this Court should reiterate its unanimous ruling
in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse
of discretion could be attributed to the public respondent
COMELEC in dismissing the petition filed by PIRMA therein, it
appearing that it only complied with the dispositions in the
Decisions of this Court in G.R. No. 127325, promulgated on March
19, 1997, and its Resolution of June 10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the
utmost respect and obedience of all the citizens of this nation. No one
can trivialize the Constitution by cavalierly amending or revising it in
blatant violation of the clearly specified modes of amendment and
revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the
Constitution in unchartered waters, to be tossed and turned by every
dominant political group of the day. If this Court allows today a cavalier
change in the Constitution outside the constitutionally prescribed modes,
tomorrow the new dominant political group that comes will demand its
own set of changes in the same cavalier and unconstitutional fashion. A
revolving-door constitution does not augur well for the rule of law in this
country.
An overwhelming majority 16,622,111 voters comprising 76.3 percent of
the total votes cast53 approved our Constitution in a national plebiscite
held on 11 February 1987. That approval is the unmistakable voice of the
people, the full expression of the people's sovereign will. That approval
included the prescribed modes for amending or revising the
Constitution.
No amount of signatures, not even the 6,327,952 million signatures
gathered by the Lambino Group, can change our Constitution contrary to
the specific modes that the people, in their sovereign capacity, prescribed
225
when they ratified the Constitution. The alternative is an extra-
constitutional change, which means subverting the people's sovereign
will and discarding the Constitution. This is one act the Court cannot and
should never do. As the ultimate guardian of the Constitution, this Court
is sworn to perform its solemn duty to defend and protect the
Constitution, which embodies the real sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the
people decide" cannot override the specific modes of changing the
Constitution as prescribed in the Constitution itself. Otherwise, the
Constitution the people's fundamental covenant that provides
enduring stability to our society becomes easily susceptible to
manipulative changes by political groups gathering signatures through
false promises. Then, the Constitution ceases to be the bedrock of the
nation's stability.
The Lambino Group claims that their initiative is the "people's voice."
However, the Lambino Group unabashedly states in ULAP Resolution No.
2006-02, in the verification of their petition with the COMELEC, that
"ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms." The
Lambino Group thus admits that their "people's" initiative is an
"unqualified support to the agenda" of the incumbent President to
change the Constitution. This forewarns the Court to be wary of
incantations of "people's voice" or "sovereign will" in the present
initiative.
This Court cannot betray its primordial duty to defend and protect the
Constitution. The Constitution, which embodies the people's sovereign
will, is the bible of this Court. This Court exists to defend and protect the
Constitution. To allow this constitutionally infirm initiative, propelled by
deceptively gathered signatures, to alter basic principles in the
Constitution is to allow a desecration of the Constitution. To allow such
alteration and desecration is to lose this Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-
Nazario, Garcia, and Velasco, Jr., JJ., concur.
____________________
EN BANC
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER WITH
6,327,952 REGISTERED VOTERS V. COMMISSION ON ELECTIONS ET AL.
SEPARATE CONCURRING OPINION
PANGANIBAN, CJ.:
Without the rule of law, there can be no lasting prosperity and certainly no
liberty.
Beverley McLachlin 1
Chief Justice of Canada
After a deep reflection on the issues raised and a careful evaluation of the
parties' respective arguments -- both oral and written -- as well as the
enlightened and enlightening Opinions submitted by my esteemed
colleagues, I am fully convinced that the present Petition must be
dismissed.
I write, however, to show that my present disposition is completely
consistent with my previous Opinions and votes on the two extant
Supreme Court cases involving an initiative to change the Constitution.
In my Separate Opinion in Santiago v. Comelec,2 I opined "that taken
together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), Republic Act 6735 and Comelec Resolution
2300 provide more than sufficient
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__________________
'SEC. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters,
of which every legislative district must be represented by at least
three per centum of the registered voters therein. No
amendment under this section shall be authorized within five
years following the ratification of this Constitution nor oftener
than once every five years thereafter.'
"With all due respect, I find the majority's position all too
sweeping and all too extremist. It is equivalent to burning the
whole house to exterminate the rats, and to killing the patient to
relieve him of pain. What Citizen Delfin wants the Comelec to do
we should reject. But we should not thereby preempt any future
effort to exercise the right of initiative correctly and judiciously.
The fact that the Delfin Petition proposes a misuse of initiative
does not justify a ban against its proper use. Indeed, there is a
right way to do the right thing at the right time and for the right
reason.
Taken Together and Interpreted Properly,
the Constitution, R.A. 6735 and Comelec Resolution
2300 Are Sufficient to Implement Constitutional Initiatives
"While R.A. 6735 may not be a perfect law, it was as the
majority openly concedes intended by the legislature to cover
and, I respectfully submit, it contains enough provisions to
effectuate an initiative on the Constitution. I completely agree
with the inspired and inspiring opinions of Mr. Justice Reynato S.
Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco
law on initiative, sufficiently implements the right of the people to
initiate amendments to the Constitution. Such views, which I shall
no longer repeat nor elaborate on, are thoroughly consistent with
this Court's unanimous en banc rulings in Subic Bay Metropolitan
Authority vs. Commission on Elections, that "provisions for
initiative . . . are (to be) liberally construed to effectuate their
purposes, to facilitate and not hamper the exercise by the voters
of the rights granted thereby"; and in Garcia vs. Comelec, that any
"effort to trivialize the effectiveness of people's initiatives ought
to be rejected."
"No law can completely and absolutely cover all administrative
details. In recognition of this, R.A. 6735 wisely empowered the
Commission on Election "to promulgate such rules and
regulations as may be necessary to carry out the purposes of this
Act." And pursuant thereto, the Comelec issued its Resolution
2300 on 16 January 1991. Such Resolution, by its very words, was
promulgated "to govern the conduct of initiative on the
Constitution and initiative and referendum on national and local
laws," not by the incumbent Commission on Elections but by one
then composed of Acting Chairperson Haydee B. Yorac, Comms.
Alfredo
authority to implement, effectuate and realize our people's power to
amend the Constitution."
__________________
E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama
and Magdara B. Dimaampao. All of these Commissioners who
signed Resolution 2300 have retired from the Commission, and
thus we cannot ascribe any vile motive unto them, other than an
honest, sincere and exemplary effort to give life to a cherished
right of our people.
"The majority argues that while Resolution 2300 is valid in regard
to national laws and local legislations, it is void in reference to
constitutional amendments. There is no basis for such
differentiation. The source of and authority for the Resolution is
the same law, R.A. 6735.
"I respectfully submit that taken together and interpreted
properly and liberally, the Constitution (particularly Art. XVII, Sec.
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 2), R.A. 6735 and Comelec Resolution 2300 provide more than
sufficient authority to implement, effectuate and realize our
people's power to amend the Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
"I am glad the majority decided to heed our plea to lift the
temporary restraining order issued by this Court on 18 December
1996 insofar as it prohibited Petitioner Delfin and the Spouses
Pedrosa from exercising their right of initiative. In fact, I believe
that such restraining order as against private respondents should
not have been issued, in the first place. While I agree that the
Comelec should be stopped from using public funds and
government resources to help them gather signatures, I firmly
believe that this Court has no power to restrain them from
exercising their right of initiative. The right to propose
amendments to the Constitution is really a species of the right of
free speech and free assembly. And certainly, it would be
tyrannical and despotic to stop anyone from speaking freely and
persuading others to conform to his/her beliefs. As the eminent
Voltaire once said, 'I may disagree with what you say, but I will
defend to the death your right to say it.' After all, freedom is not
really for the thought we agree with, but as Justice Holmes
wrote, 'freedom for the thought that we hate.'
Epilogue
"By way of epilogue, let me stress the guiding tenet of my
Separate Opinion. Initiative, like referendum and recall, is a new
and treasured feature of the Filipino constitutional system. All
three are institutionalized legacies of the world-admired EDSA
people power. Like elections and plebiscites, they are hallowed
expressions of popular sovereignty. They are sacred democratic
rights of our people to be used as
Six months after, in my Separate Opinion in People's Initiative for Reform,
Modernization and Action (PIRMA) v. Comelec,3 I joined the rest of the
members of the Court in ruling "by a unanimous vote, that no grave
abuse of discretion could be attributed to the Comelec in dismissing the
petition filed by
__________________
Constitution x x x." While concededly, petitioners in this case
were not direct parties in Santiago, nonetheless the Court's
injunction against the Comelec covered ANY petition, not just the
Delfin petition which was the immediate subject of said case. As a
dissenter in Santiago, I believed, and still do, that the majority
gravely erred in rendering such a sweeping injunction, but I
cannot fault the Comelec for complying with the ruling even if it,
too, disagreed with said decision's ratio decidendi. Respondent
Comelec was directly enjoined by the highest Court of the land.
It had no choice but to obey. Its obedience cannot constitute
grave abuse of discretion. Refusal to act on the PIRMA petition
was the only recourse open to the Comelec. Any other mode of
action would have constituted defiance of the Court and would
have been struck down as grave abuse of discretion and
contumacious disregard of this Court's supremacy as the final
arbiter of justiciable controversies.
Second Issue:
Sufficiency of RA 6735
"I repeat my firm legal position that RA 6735 is adequate to cover
initiatives on the Constitution, and that whatever administrative
details may have been omitted in said law are satisfactorily
provided by Comelec Resolution 2300. The promulgation of
Resolution 2300 is sanctioned by Section 2, Article IX-C of the
Constitution, which vests upon the Comelec the power to
"enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and
recall." The Omnibus Election Code likewise empowers the
electoral body to "promulgate rules and regulations
implementing the provisions of this Code or other laws which the
Commission is required to enforce and administer x x x." Finally
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 and most relevantly, Section 20 of Ra 6735 specifically authorizes
Comelec "to promulgate rules and regulations as may be
necessary to carry out the purposes of this Act."
"In my dissent in Santiago, I wrote that "there is a right way to do
the right thing at the right time and for the right reason." Let me
explain further.
The Right Thing
"A people's initiative is direct democracy in action. It is the right
thing that citizens may avail themselves of to articulate their will.
It is a new and treasured feature of the Filipino constitutional
system. Even the majority implicitly conceded its value and worth
in our legal firmament when it implored Congress "not to tarry
any longer in complying with the constitutional mandate to
provide for implementation of the right (of initiative) of the
people x x x." Hence, in the en banc case of Subic Bay
Metropolitan Authority vs. Comelec, [G.R. No. 125416, September
26, 1996], this Court unanimously held that "(l)ike elections,
initiative and referendum are powerful and valuable modes of
expressing popular
PIRMA therein," since the Commission had "only complied" with the
Santiago Decision.
__________________
sovereignty. And this Court as a matter of policy and doctrine will
exert every effort to nurture, protect and promote their
legitimate exercise."
The Right Way
"From the outset, I have already maintained the view that "taken
together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), RA 6735 and Comelec Resolution
2300 provide more than sufficient authority to implement,
effectuate and realize our people's power to amend the
Constitution." Let me now demonstrate the adequacy of RA 6735
by outlining, in concrete terms, the steps to be taken the right
way to amend the Constitution through a people's initiative.
"Pursuant to Section 3(f) of the law, the Comelec shall prescribe
the form of the petition which shall contain the proposition and
the required number of signatories. Under Sec. 5(c) thereof, the
petition shall state the following:
'c.1 contents or text of the [provision or provisions]
sought to be x x x amended, x x x;
c.2 the proposition [in full text];
c.3 the reason or reasons therefor [fully and clearly
explained];
c.4 that it is not one of exceptions provided herein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition in not more than
one hundred (100) words which shall be legibly written or
printed at the top of every page of the petition.'
"Section 8(f) of Comelec Resolution 2300 additionally requires
that the petition include a formal designation of the duly
authorized representatives of the signatories.
"Being a constitutional requirement, the number of signatures
becomes a condition precedent to the filing of the petition, and is
jurisdictional. Without such requisite signatures, the Commission
shall motu proprio reject the petition.
229
 "Where the initiators have substantially complied with the above
requirements, they may thence file the petition with the Comelec
which is tasked to determine the sufficiency thereof and to verify
the signatures on the basis of the registry list of voters, voters'
affidavits and voters' identification cards. In deciding whether the
petition is sufficient, the Comelec shall also determine if the
proposition is proper for an initiative, i.e., if it consists of an
amendment, not a revision, of the Constitution. Any decision of
the electoral body may be appealed to the Supreme Court within
thirty (30) days from notice.
I added "that my position upholding the adequacy of RA 6735 and the
validity of Comelec Resolution 2300 will not ipso
__________________
"Within thirty (30) days from receipt of the petition, and after the
determination of its sufficiency, the Comelec shall publish the
same in Filipino and English at least twice in newspapers of
general and local circulation, and set the date of the plebiscite.
The conduct of the plebiscite should not be earlier than sixty (60)
days, but not later than ninety (90) days after certification by the
Comelec of the sufficiency of the petition. The proposition, if
approved by a majority of the votes cast in the plebiscite,
becomes effective as of the day of the plebiscite.
"From the foregoing, it should be clear that my position
upholding the adequacy of RA 6735 and the validity of Comelec
Resolution 2300 will not ipso facto validate the PIRMA petition
and automatically lead to a plebiscite to amend the Constitution.
Far from it. Among others, PIRMA must still satisfactorily hurdle
the following searching issues:
1. Does the proposed change the lifting of the term limits of
elective officials -- constitute a mere amendment and not a
revision of the Constitution?
2. Which registry of voters will be used to verify the signatures in
the petition? This question is relevant considering that under RA
8189, the old registry of voters used in the 1995 national elections
was voided after the barangay elections on May 12, 1997, while
the new list may be used starting only in the elections of May
1998.
3. Does the clamor for the proposed change in the Constitution
really emanate from the people who signed the petition for
initiative? Or it is the beneficiaries of term extension who are in
fact orchestrating such move to advance their own political self-
interest?
4. Are the six million signatures genuine and verifiable? Do they
really belong to qualified warm bodies comprising at least 12% of
the registered voters nationwide, of which every legislative
district is represented by at least 3% of the registered voters
therein?
"I shall expound on the third question in the next section, The
Right Reason. Question Nos. 1 and 2 above, while important, are
basically legal in character and can be determined by
argumentation and memoranda. However, Question No. 4
involves not only legal issues but gargantuan hurdles of factual
determination. This to my mind is the crucible, the litmus test, of a
people's petition for initiative. If herein petitioners, led by PIRMA,
succeed in proving -- not just alleging -- that six million voters of
this country indeed want to amend the Constitution, what power
on earth can stop them? Not this Court, not the Comelec, not
even the President or Congress.
facto validate the PIRMA petition and automatically lead to a plebiscite to
amend the Constitution. Far from it." I stressed that PIRMA must show
the following, among others:
__________________
230
"It took only one million people to stage a peaceful revolution at
EDSA, and the very rafters and foundations of the martial law
society trembled, quaked and crumbled. On the other hand,
PIRMA and its co-petitioners are claiming that they have gathered
six million signatures. If, as claimed by many, these six million
signatures are fraudulent, then let them be exposed and damned
for all history in a signature-verification process conducted under
our open system of legal advocacy.
"More than anything else, it is the truth that I, as a member of this
Court and as a citizen of this country, would like to seek: Are
these six million signatures real? By insisting on an entirely new
doctrine of statutory inadequacy, the majority effectively
suppressed the quest for that truth.
The Right Reason
"As mentioned, the third question that must be answered, even if
the adequacy of RA 6735 and the validity of Comelec Resolution
2300 were upheld by the majority is: Does the clamor for the
proposed change to the Constitution really emanate from the
people who signed the petition for initiative? Or is it the
beneficiaries of term extension who are in fact orchestrating such
move to advance their own political self-interests? In other words,
is PIRMA's exercise of the right to initiative being done in
accordance with our Constitution and our laws? Is such attempted
exercise legitimate?
"In Garcia vs. Commission on Elections, we described initiative,
along with referendum, as the 'ultimate weapon of the people to
negate government malfeasance and misfeasance.' In Subic Bay,
we specified that 'initiative is entirely the work of the electorate x
x x a process of lawmaking by the people themselves without the
participation and against the wishes of their elected
representatives.' As ponente of Subic Bay, I stand foursquare on
this principle: The right to amend through initiative belongs only
to the people not to the government and its minions. This
principle finds clear support from utterances of many
constitutional commissioners like those quoted below:
"[Initiative is] a reserve power of the sovereign people, when
they are dissatisfied with the National Assembly x x x [and]
precisely a fallback position of the people in the event that they
are dissatisfied." -- Commissioner Ople
"[Initiative is] a check on a legislative that is not responsive [and
resorted to] only if the legislature is not as responsive to the vital
and urgent needs of people." -- Commissioner Gascon
(1) The proposed change -- the lifting of term limits of elective officials --
"constitute[s] a mere amendment and not a revision of the Constitution."
_________________
"[Initiative is an] extraordinary power given to the people [and]
reserved for the people [which] should not be frivolously
resorted to." -- Commissioner Romulo
"Indeed, if the powers-that-be desire to amend the Constitution,
or even to revise it, our Charter itself provides them other ways of
doing so, namely, by calling a constitutional convention or
constituting Congress into a constituent assembly. These are
officialdom's weapons. But initiative belongs to the people.
"In the present case, are PIRMA and its co-petitioners legitimate
people's organizations or are they merely fronts for incumbents
who want to extend their terms? This is a factual question which,
unfortunately, cannot be judicially answered anymore, because
the Supreme Court majority ruled that the law that implements it,
RA 6735, is inadequate or insufficient insofar as initiatives to the
Constitutions are concerned. With such ruling, the majority
effectively abrogated a constitutional right of our people. That is
why in my Separate Opinion in Santiago, I exclaimed that such
precipitate action "is equivalent to burning the whole house to
231
 exterminate the rats, and to killing the patient to relieve him of
pain." I firmly maintain that to defeat PIRMA's effort, there is no
need to "burn" the constitutional right to initiative. If PIRMA's
exercise is not "legitimate," it can be exposed as such in the ways
I have discussed short of abrogating the right itself. On the
other hand, if PIRMA's position is proven to be legitimate if it
hurdles the four issues I outlined earlier by all means, we should
allow and encourage it. But the majority's theory of statutory
inadequacy has pre-empted unnecessarily and invalidly, in my
view any judicial determination of such legitimacy or
illegitimacy. It has silenced the quest for truth into the interstices
of the PIRMA petition.
The Right Time
"The Constitution itself sets a time limitation on when changes
thereto may be proposed. Section 2 of Article XVII precludes
amendments "within five years following [its] ratification x x x
nor oftener than once every five years thereafter." Since its
ratification, the 1987 Constitution has never been amended.
Hence, the five-year prohibition is now inoperative and
amendments may theoretically be proposed at any time.
"Be that as it may, I believe given the present circumstances
that there is no more time to lift term limits to enable incumbents
to seek reelection in the May 11, 1998 polls. Between today and
the next national
(2) The "six million signatures are genuine and verifiable"; and they "really
belong to qualified warm bodies comprising at
__________________
elections, less than eight (8) months remain. Santiago, where the
single issue of the sufficiency of RA 6735 was resolved, took this
Court three (3) months, and another two (2) months to decide
the motion for reconsideration. The instant case, where the same
issue is also raised by the petitioners, took two months, not
counting a possible motion for reconsideration. These time spans
could not be abbreviated any further, because due process
requires that all parties be given sufficient time to file their
pleadings.
"Thus, even if the Court were to rule now in favor of the adequacy
of RA 6735 as I believe it should and allow the Comelec to act
on the PIRMA petition, such eight-month period will not be
enough to tackle the four weighty issues I mentioned earlier,
considering that two of them involve tedious factual questions.
The Comelec's decision on any of these issues can still be elevated
to this Court for review, and reconsiderations on our decisions on
each of those issues may again be sought.
"Comelec's herculean task alone of verifying each of the six
million signatures is enormously time-consuming, considering
that any person may question the authenticity of each and every
signature, initially before the election registrar, then before the
Comelec on appeal and finally, before this Court in a separate
proceeding. Moreover, the plebiscite itself assuming such stage
can be reached may be scheduled only after sixty (60) but not
more than ninety (90) days, from the time the Comelec and this
Court, on appeal, finally declare the petition to be sufficient.
"Meanwhile, under Comelec Resolution 2946, political parties,
groups organizations or coalitions may start selecting their official
candidates for President, Vice President and Senators on
November 27, 1997; the period for filing certificates of candidacy
is from January 11 to February 9, 1998; the election period and
campaign for national officials start on February 10, 1998, while
the campaign period for other elective officials, on March 17,
1998. This means, by the time PIRMA's proposition is ready if
ever for submission directly to the voters at large, it will have
been overcome by the elections. Time will simply run out on
PIRMA, if the intention is to lift term limits in time for the 1998
elections.
232
 "That term limits may no longer be lifted prior to the 1998
elections via a people's initiative does not detract one whit from
(1) my firm conviction that RA 6735 is sufficient and adequate to
implement this constitutional right and, more important, (2) my
faith in the power of the people to initiate changes in local and
national laws and the Constitution. In fact, I think the Court can
deliberate on these two items even more serenely and wisely
now that the debates will be free from the din and distraction of
the 1998 elections. After all, jurisprudence is not merely for the
here and now but, more so, for the hereafter and the morrow. Let
me therefore stress, by way of epilogue, my unbending credo in
favor of our people's right to initiative.
least 12% of the registered voters nationwide, of which every legislative
district is represented by at least 3% of the registered voters therein."
__________________
Epilogue
"I believe in democracy in our people's natural right to
determine our own destiny.
"I believe in the process of initiative as a democratic method of
enabling our people to express their will and chart their history.
Initiative is an alternative to bloody revolution, internal chaos and
civil strife. It is an inherent right of the people as basic as the
right to elect, the right to self-determination and the right to
individual liberties. I believe that Filipinos have the ability and the
capacity to rise above themselves, to use this right of initiative
wisely and maturely, and to choose what is best for themselves
and their posterity.
"Such beliefs, however, should not be equated with a desire to
perpetuate a particular official or group of officials in power. Far
from it. Such perpetuation is anathema to democracy. My firm
conviction that there is an adequate law implementing the
constitutional right of initiative does not ipso facto result in the
victory of the PIRMA petition or of any proposed constitutional
change. There are, after all, sufficient safeguards to guarantee
the proper use of such constitutional right and to forestall its
misuse and abuse. First, initiative cannot be used to revise the
Constitution, only to amend it. Second, the petitioners' signatures
must be validated against an existing list of voters and/or voters'
identification cards. Third, initiative is a reverse power of and by
the people, not of incumbent officials and their machinators.
Fourth and most important of all, the signatures must be verified
as real and genuine; not concocted, fictitious or fabricated. The
only legal way to do this is to enable the Commission on Elections
to conduct a nationwide verification process as mandated by the
Constitution and the law. Such verification, it bears stressing, is
subject to review by this Court.
"There were, by the most generous estimate, only a million
people who gathered at EDSA in 1986, and yet they changed the
history of our country. PIRMA claims six times that number, not
just from the National Capital Region but from all over the
country. Is this claim through the invention of its novel theory of
statutory insufficiency, the Court's majority has stifled the only
legal method of determining whether PIRMA is real or not,
whether there is indeed a popular clamor to lift term limits of
elected officials, and whether six million voters want to initiate
amendments to their most basic law. In suppressing a judicial
answer to such questions, the Court may have unwittingly yielded
to PIRMA the benefit of the legal presumption of legality and
regularity. In its misplaced zeal to exterminate the rats, it burned
down the whole house. It unceremoniously divested the people
of a basic constitutional right.
In both Opinions, I concluded that we must implement "the right thing
[initiative] in the right way at the right time and for the right reason."
In the present case, I steadfastly stand by my foregoing Opinions in
Santiago and PIRMA. Tested against them, the present Petition of Raul
Lambino and Erico Aumentado must be DISMISSED. Unfortunately, the
233
right thing is being rushed in the wrong way and for the wrong reasons.
Let me explain.
No Grave Abuse
of Discretion by Comelec
As in PIRMA, I find no grave abuse of discretion in Comelec's dismissal of
the Lambino Petition. After all, the Commission merely followed the
holding in Santiago permanently
____________________
"In the ultimate, the mission of the judiciary is to discover truth
and to make it prevail. This mission is undertaken not only to
resolve the vagaries of present events but also to build the
pathways of tomorrow. The sum total of the entire process of
adversarial litigation is the verity of facts and the application of
law thereto. By the majority cop-out in this mission of discovery,
our country and our people have been deprived not only of a
basic constitutional right, as earlier noted, but also of the judicial
opportunity to verify the truth."
enjoining the poll body "from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of
the system."
Indeed, the Comelec did not violate the Constitution, the laws or any
jurisprudence.4 Neither can whim, caprice, arbitrariness or personal bias
be attributed to the Commission.5 Quite the contrary, it prudently
followed this Court's jurisprudence in Santiago and PIRMA. Even assuming
arguendo that Comelec erred in ruling on a very difficult and unsettled
question of law, this Court still cannot attribute grave abuse of discretion
to the poll body with respect to that action.6
The present Lambino Petition is in exactly the same situation as that of
PIRMA in 1997. The differences pointed out by Justice Reynato S. Puno
are, with due respect, superficial. It is argued that, unlike the present
Lambino Petition, PIRMA did not contain verified signatures. These are
distinctions that do not make a difference. Precisely, Justice Puno is
urging a remand, because the verification issue is "contentious" and
remains unproven by petitioners. Clearly, both the PIRMA and the
Lambino Petitions contain unverified signatures. Therefore, they both
deserve the same treatment: DISMISSAL.
Besides, the only reason given in the unanimous Resolution on PIRMA v.
Comelec was that the Commission had "only complied" with this Court's
Decision in Santiago, the same reason given by Comelec in this case. The
Separate Opinions in PIRMA gave no other reason. No one argued, even
remotely, that the PIRMA Petition should have been dismissed because
the signatures were unverified.
To stress, I adhere to my Opinion in PIRMA that, "[b]eing a constitutional
requirement, the number of signatures becomes a condition precedent to
the filing of the petition, and is jurisdictional.7 Without those signatures,
the Comelec shall motu proprio reject the petition."
So, until and unless Santiago is revisited and changed by this Court or the
legal moorings of the exercise of the right are substantially changed, the
Comelec cannot be faulted for acting in accord with this Court's
pronouncements. Respondent Commission has no discretion, under any
guise, to refuse enforcement of any final decision of this Court.8 The
refusal of the poll body to act on the Lambino Petition was its only
recourse. Any other mode of action would appear not only
presumptuous, but also contemptuous. It would have constituted
defiance of the Court and would have surely been struck down as grave
abuse of discretion and contumacious disregard of the supremacy of this
Court as the final arbiter of justiciable controversies.
Even assuming further that this Court rules, as I believe it should (for the
reasons given in my Opinions in Santiago and PIRMA), that Republic Act
6735 is indeed sufficient to implement an initiative to amend the
Constitution, still, no grave abuse of discretion can be attributed to the
234
Comelec for merely following prevailing jurisprudence extant at the time
it rendered its ruling in question.
Only Amendments,
Not Revisions
I reiterate that only amendments, not revisions, may be the proper
subject of an initiative to change the Constitution. This principle is crystal
clear from even a layperson's reading of the basic law.9
I submit that changing the system of government from presidential to
parliamentary and the form of the legislature from bicameral to
unicameral contemplates an overhaul of the structure of government.
The ponencia has amply demonstrated that the merger of the legislative
and the executive branches under a unicameral-parliamentary system,
"[b]y any legal test and under any jurisdiction," will "radically alter the
framework of government as set forth in the Constitution." Indeed, the
proposed changes have an overall implication on the entire Constitution;
they effectively rewrite its most important and basic provisions. The
prolixity and complexity of the changes cannot be categorized, even by
semantic generosity, as "amendments."
In addition, may I say that of the three modes of changing the
Constitution, revisions (or amendments) may be proposed only through
the first two: by Congress or by a constitutional convention. Under the
third mode -- people's initiative -- only amendments are allowed. Many of
the justices' Opinions have cited the historical, philosophical and
jurisprudential bases of their respective positions. I will not add to the
woes of the reader by reiterating them here.
Suffice it to say that, to me, the practical test to differentiate an
amendment from a revision is found in the Constitution itself: a revision
may be done only when the proposed change can be drafted, defined,
articulated, discussed and agreed upon after a mature and democratic
debate in a deliberative body like Congress or a Convention. The
changes proposed must necessarily be scrutinized, as their adoption or
non-adoption must result from an informed judgment.
Indeed, the constitutional bodies that drafted the 1935, the 1972 and the
1987 Constitutions had to spend many months of purposeful discussions,
democratic debates and rounds of voting before they could agree on the
wordings covering the philosophy, the underlying principles, and the
structure of government of our Republic.
Verily, even bills creating or changing the administrative structure of local
governments take several weeks or even months of drafting, reading,
and debating before Congress can approve them. How much more when
it comes to constitutional changes?
A change in the form of government of our country from presidential-
bicameral to parliamentary-unicameral is monumental. Even the initiative
proponents admit this fact. So, why should a revision be rammed down
our people's throats without the benefit of intelligent discussion in a
deliberative assembly?
Added to the constitutional mandate barring revisions is the provision of
RA 6735 expressly prohibiting petitions for initiative from "embracing
more than one subject matter."10 The present initiative covers at least
two subjects: (1) the shift from a presidential to a parliamentary form of
government; and (2) the change from a bicameral to a unicameral
legislature.11 Thus, even under Republic Act 6735 -- the law that Justice
Puno and I hold to be sufficient and valid -- the Lambino Petition deserves
dismissal.
12 Percent and 3 Percent Thresholds
Not Proven by Petitioners
The litmus test of a people's petition for initiative is its ability to muster
the constitutional requirement that it be supported by at least 12 percent
of the registered voters nationwide, of which at least 3 percent of the
registered voters in every legislative district must be represented. As
235
pointed out by Intervenors One Voice, Inc., et al., however, records show
that there was a failure to meet the minimum percentages required.12
Even Justice Puno concedes that the 12 percent and 3 percent
constitutional requirements involve "contentious facts," which have not
been proven by the Lambino Petition. Thus, he is urging a remand to the
Comelec.
But a remand is both imprudent and futile. It is imprudent because the
Constitution itself mandates the said requisites of an initiative petition. In
other words, a petition that does not show the required percentages is
fatally defective and must be dismissed, as the Delfin Petition was, in
Santiago.
Furthermore, as the ponencia had discussed extensively, the present
Petition is void and unconstitutional. It points out that the Petition
dismally fails to comply with the constitutional requirement that an
initiative must be directly proposed by the people. Specifically, the
ponencia has amply established that petitioners were unable to show
that the Lambino Petition contained, or incorporated by attachment, the
full text of the proposed changes.
So, too, a remand is futile. Even if the required percentages are proven
before the Commission, the Petition must still be dismissed for
proposing a revision, not an amendment, in gross violation of the
Constitution. At the very least, it proposes more than one subject, in
violation of Republic Act 6735.
Summation
Petitioners plead with this Court to hear the voice of the people because,
in the words of Justice Puno who supports them, the "people's voice is
sovereign in a democracy."
I, too, believe in heeding the people's voice. I reiterate my Separate
Opinion in PIRMA that "initiative is a democratic method of enabling our
people to express their will and chart their history. x x x. I believe that
Filipinos have the ability and the capacity to rise above themselves, to use
this right of initiative wisely and maturely, and to choose what is best for
themselves and their posterity."
This belief will not, however, automatically and blindly result in an
initiative to change the Constitution, because the present Petition
violates the following:
The Constitution (specifically Article XVII, which allows only
amendments, not revisions, and requires definite percentages of verified
signatures)
The law (specifically, Republic Act 6735, which prohibits petitions
containing more than one subject)
Jurisprudence (specifically, PIRMA v. Comelec, which dismissed the
Petition then under consideration on the ground that, by following the
Santiago ruling, the Comelec had not gravely abused its discretion).
I submit further that a remand of the Lambino Petition is both imprudent
and futile. More tellingly, it is a cop-out, a hand-washing already
discredited 2000 years ago. Instead of finger-pointing, I believe we must
confront the issues head on, because the people expect no less from this
august and venerable institution of supreme justice.
Epilogue
At bottom, the issue in this case is simply the Rule of Law.13 Initiative, like
referendum and recall, is a treasured feature of the Filipino constitutional
system. It was born out of our world-admired and often-imitated People
Power, but its misuse and abuse must be resolutely rejected. Democracy
must be cherished, but mob rule vanquished.
The Constitution is a sacred social compact, forged between the
government and the people, between each individual and the rest of the
citizenry. Through it, the people have solemnly expressed their will that
all of them shall be governed by laws, and their rights limited by agreed-
236
upon covenants to promote the common good. If we are to uphold the Verily, the Supreme Court is now on the crossroads of history. By its
Rule of Law and reject the rule of the mob, we must faithfully abide by decision, the Court and each of its members shall be judged by posterity.
the processes the Constitution has ordained in order to bring about a Ten years, fifty years, a hundred years -- or even a thousand years -- from
peaceful, just and humane society. Assuming arguendo that six million now, what the Court did here, and how each justice opined and voted,
people allegedly gave their assent to the proposed changes in the will still be talked about, either in shame or in pride. Indeed, the hand-
Constitution, they are nevertheless still bound by the social covenant -- washing of Pontius Pilate, the abomination of Dred Scott, and the
the present Constitution -- which was ratified by a far greater majority loathing of Javellana still linger and haunt to this day.
almost twenty years ago.14 I do not denigrate the majesty of the
sovereign will; rather, I elevate our society to the loftiest perch, because Let not this case fall into the same damnation. Rather, let this Court be
our government must remain as one of laws and not of men. known throughout the nation and the world for its independence,
integrity, industry and intelligence.
Upon assuming office, each of the justices of the Supreme Court took a
solemn oath to uphold the Constitution. Being the protectors of the WHEREFORE, I vote to DISMISS the Petition.
fundamental law as the highest expression of the sovereign will, they
must subject to the strictest scrutiny any attempt to change it, lest it be
ARTEMIO V. PANGANIBAN
trivialized and degraded by the assaults of the mob and of ill-conceived
Chief Justice
designs. The Court must single-mindedly defend the Constitution from
bogus efforts falsely attributed to the sovereign people.
____________________
The judiciary may be the weakest branch of government. Nonetheless,
when ranged against incessant voices from the more powerful branches EN BANC
of government, it should never cower in submission. On the other hand, I
daresay that the same weakness of the Court becomes its strength when G.R. No. 174153 October 25, 2006
it speaks independently through decisions that rightfully uphold the
supremacy of the Constitution and the Rule of Law. The strength of the RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952
judiciary lies not in its lack of brute power, but in its moral courage to REGISTERED VOTERS, Petitioners,
perform its constitutional duty at all times against all odds. Its might is in vs.
its being right.15 THE COMMISSION ON ELECTIONS, ET AL., Respondents.

During the past weeks, media outfits have been ablaze with reports and G.R. No. 174299 October 25, 2006
innuendoes about alleged carrots offered and sticks drawn by those
interested in the outcome of this case.16 There being no judicial proof of MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A. Q.
these allegations, I shall not comment on them for the nonce, except to SAGUISAG, Petitioners,
quote the Good Book, which says, "There is nothing hidden that will not vs.
be revealed, and nothing secret that will not be known and come to COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S.
light."17 ABALOS, JR. and Commissioners RESURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V.
SARMIENTO, and John Doe and Peter Doe, Respondents.
237
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
YNARES-SANTIAGO, J.:
I agree with the opinion of our esteemed colleague, Justice Reynato
Puno, that the Court's ruling in Santiago v. COMELEC1 is not a binding
precedent. However, it is my position that even if Santiago were reversed
and Republic Act No. 6735 (R.A. 6735) be held as sufficient law for the
purpose of people's initiative to amend the Constitution, the petition for
initiative in this case must nonetheless be dismissed.
There is absolutely no showing here that petitioners complied with R.A.
6735, even as they blindly invoke the said law to justify their alleged
people's initiative. Section 5(b) of R.A. 6735 requires that "[a] petition for
an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of
which every legislative district must be represented by at least three per
centum (3%) of the registered voters therein." On the other hand, Section
5(c)2 of the same law requires that the petition should state, among
others, the proposition3 or the "contents or text of the proposed law
sought to be enacted, approved or rejected, amended or repealed." If we
were to apply Section 5(c) to an initiative to amend the Constitution, as
petitioners submit, the petition for initiative signed by the required
number of voters should incorporate therein a text of the proposed
changes to the Constitution. However, such requirement was not
followed in the case at bar.
During the oral arguments, petitioner Lambino admitted that they
printed a mere 100,000 copies of the text of the proposed changes to the
Constitution. According to him, these were subsequently distributed to
their agents all over the country, for attachment to the sheets of paper
on which the signatures were to be affixed. Upon being asked, however,
if he in fact knew whether the text was actually attached to the signature
sheets which were distributed for signing, he said that he merely
assumed that they were. In other words, he could not tell the Court for
certain whether their representatives complied with this requirement.
The petition filed with the COMELEC, as well as that which was shown to
this Court, indubitably establish that the full text of the proposed
changes was not attached to the signature sheets. All that the signature
sheets contained was the general proposition and abstract, which falls
short of the full text requirement of R.A. 6735.
The necessity of setting forth the text of the proposed constitutional
changes in the petition for initiative to be signed by the people cannot be
seriously disputed. To begin with, Article XVII, Section 2 of the
Constitution unequivocally states that "[a]mendments to this
Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters
therein." Evidently, for the people to propose amendments to the
Constitution, they must, in the first instance, know exactly what they are
proposing. It is not enough that they merely possess a general idea of the
proposed changes, as the Constitution speaks of a "direct" proposal by
the people.
Although the framers of the Constitution left the matter of implementing
the constitutional right of initiative to Congress, it might be noted that
they themselves reasonably assumed that the draft of the proposed
constitutional amendments would be shown to the people during the
process of signature gathering. Thus
MR. RODRIGO. Section 2 of the complete committee report
provides: "upon petition of at least 10 percent of the registered
voters." How will we determine that 10 percent has been
achieved? How will the voters manifest their desire, is it by
signature?
MR. SUAREZ. Yes, by signatures.
MR. RODRIGO. Let us look at the mechanics. Let us say some
voters want to propose a constitutional amendment. Is the draft
of the proposed constitutional amendment ready to be shown to
the people when they are asked to sign?
238
 MR. SUAREZ. That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready
and shown to them before they sign. Now, who prepares the
draft?
MR. SUAREZ: The people themselves, Madam President.4
It may thus be logically assumed that even without Section 5(c) of R.A.
6735, the full text of the proposed changes must necessarily be stated in
or attached to the initiative petition. The signatories to the petition must
be given an opportunity to fully comprehend the meaning and effect of
the proposed changes to enable them to make a free, intelligent and
well-informed choice on the matter.
Needless to say, the requirement of setting forth the complete text of
the proposed changes in the petition for initiative is a safeguard against
fraud and deception. If the whole text of the proposed changes is
contained in or attached to the petition, intercalations and riders may be
duly avoided. Only then can we be assured that the proposed changes are
truly of the people and that the signatories have been fully apprised of its
implications.
If a statutory provision is essential to guard against fraud, corruption or
deception in the initiative and referendum process, such provision must
be viewed as an indispensable requirement and failure to substantially
comply therewith is fatal.5 The failure of petitioners in this case to comply
with the full text requirement resultantly rendered their petition for
initiative fatally defective.
The petition for initiative is likewise irretrievably infirm because it violates
the one subject rule under Section 10(a) of R.A. 6735:
SEC. 10. Prohibited Measures. The following cannot be the
subject of an initiative or referendum petition:
(a) No petition embracing more than one subject shall be
submitted to the electorate; x x x
The one subject rule, as relating to an initiative to amend the
Constitution, has the same object and purpose as the one subject-one bill
rule embodied in Article VI, Section 26(1)6 of the Constitution.7 To
elaborate, the one subject-one bill rule was designed to do away with the
practice of inserting two or more unrelated provisions in one bill, so that
those favoring one provision would be compelled to adopt the others. By
this process of log-rolling, the adoption of both provisions could be
accomplished and ensured, when neither, if standing alone, could
succeed on its own merits.
As applied to the initiative process, the one subject rule is essentially
designed to prevent surprise and fraud on the electorate. It is meant to
safeguard the integrity of the initiative process by ensuring that no
unrelated riders are concealed within the terms of the proposed
amendment. This in turn guarantees that the signatories are fully aware
of the nature, scope and purpose of the proposed amendment.
Petitioners insist that the proposed changes embodied in their petition
for initiative relate only to one subject matter, that is the shift from
presidential to a parliamentary system of government. According to
petitioners, all of the other proposed changes are merely incidental to
this main proposal and are reasonably germane and necessary thereto.8
An examination of the text of the proposed changes reveals, however,
that this is not the case.
The proposed changes to the Constitution cover other subjects that are
beyond the main proposal espoused by the petitioners. Apart from a shift
from the presidential to a parliamentary form of government, the
proposed changes include the abolition of one House of Congress,9 and
the convening of a constituent assembly to propose additional
amendments to the Constitution.10 Also included within its terms is an
omnibus declaration that those constitutional provisions under Articles VI
and VII, which are inconsistent with the unicameral-parliamentary form of
government, shall be deemed amended to conform thereto.
239
It is not difficult to see that while the proposed changes appear to relate
only to a shift in the form of government, it actually seeks to affect other
subjects that are not reasonably germane to the constitutional alteration
that is purportedly sought. For one, a shift to a parliamentary system of
government does not necessarily result in the adoption of a unicameral
legislature. A parliamentary system can exist in many different "hybrid"
forms of government, which may or may not embrace unicameralism.11 In
other words, the shift from presidential to parliamentary structure and
from a bicameral to a unicameral legislature is neither the cause nor
effect of the other.
I also fail to see the relation of convening a constituent assembly with the
proposed change in our system of government. As a subject matter, the
convening of a constituent assembly to amend the Constitution presents
a range of issues that is far removed from the subject of a shift in
government. Besides, the constituent assembly is supposed to convene
and propose amendments to the Constitution after the proposed change
in the system of government has already taken place. This only goes to
show that the convening of the constituent assembly is not necessary to
effectuate a change to a parliamentary system of government.
The omnibus statement that all provisions under Articles VI and VII which
are inconsistent with a unicameral-parliamentary system of government
shall be deemed amended is equally bothersome. The statement does
not specify what these inconsistencies and amendments may be, such
that everyone is left to guess the provisions that could eventually be
affected by the proposed changes. The subject and scope of these
automatic amendments cannot even be spelled out with certainty. There
is thus no reasonable measure of its impact on the other constitutional
provisions.
The foregoing proposed changes cannot be the subject of a people's
initiative under Section 2, Article XVII of the Constitution. Taken together,
the proposed changes indicate that the intendment is not simply to effect
substantial amendments to the Constitution, but a revision thereof. The
distinction between an amendment and revision was explained by Dean
Vicente G. Sinco, as follows:
"Strictly speaking, the act of revising a constitution involves
alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important
provisions. But whatever results the revision may produce, the
factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention
and plan must contemplate a consideration of all the provisions
of the constitution to determine which one should be altered or
suppressed or whether the whole document should be replaced
with an entirely new one.
The act of amending a constitution, on the other hand, envisages
a change of only a few specific provisions. The intention of an act
to amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather
is to improve specific parts of the existing constitution or to add
to it provisions deemed essential on account of changed
conditions or to suppress portions of it that seem obsolete, or
dangerous, or misleading in their effect."12
The foregoing traditional exposition of the difference between
amendment and revision has indeed guided us throughout our
constitutional history. However, the distinction between the two terms is
not, to my mind, as significant in the context of our past constitutions, as
it should be now under the 1987 Constitution. The reason for this is
apparent. Under our past constitutions, it was Congress alone, acting
either as a constituent assembly or by calling out a constitutional
convention, that exercised authority to either amend or revise the
Constitution through the procedures therein described. Although the
distinction between the two terms was theoretically recognized under
both the 1935 and 1973 Constitutions, the need to highlight the difference
was not as material because it was only Congress that could effect
constitutional changes by choosing between the two modalities.
However, it is different now under the 1987 Constitution. Apart from
providing for the two modes of either Congress constituting itself as a
constituent assembly or calling out for a constitutional convention, a
240
third mode was introduced for proposing changes to the Constitution.
This mode refers to the people's right to propose amendments to the
fundamental law through the filing of a petition for initiative.
Otherwise stated, our experience of what constitutes amendment or
revision under the past constitutions is not determinative of what the
two terms mean now, as related to the exercise of the right to propose
either amendments or revision. The changes introduced to both the
Constitutions of 1935 and 1973 could have indeed been deemed an
amendment or revision, but the authority for effecting either would
never have been questioned since the same belonged solely to
Congress. In contrast, the 1987 Constitution clearly limits the right of the
people to directly propose constitutional changes to amendments only.
We must consequently not be swayed by examples of constitutional
changes effected prior to the present fundamental law, in determining
whether such changes are revisory or amendatory in nature.
In this regard, it should be noted that the distinction laid down by Justice
Felix Q. Antonio in Javellana v. Executive Secretary13 related to the
procedure to be followed in ratifying a completely new charter proposed
by a constitutional convention. The authority or right of the constitutional
convention itself to effect such a revision was not put in issue in that
case. As far as determining what constitutes "amendments" for the
purpose of a people's initiative, therefore, we have neither relevant
precedent nor prior experience. We must thus confine ourselves to Dean
Sinco's basic articulation of the two terms.
It is clear from Dean Sinco's explanation that a revision may either be of
the whole or only part of the Constitution. The part need not be a
substantial part as a change may qualify as a revision even if it only
involves some of the important provisions. For as long as the intention
and plan to be carried out contemplate a consideration of all the
provisions of the Constitution "to determine which should be altered or
suppressed, or whether the whole document should be replaced with an
entirely new one," the proposed change may be deemed a revision and
not merely an amendment.
Thus, it is not by the sheer number alone of the proposed changes that
the same may be considered as either an amendment or revision. In so
determining, another overriding factor is the "original intention and plan
authorized to be carried out" by the proposed changes. If the same
relates to a re-examination of the entire document to see which
provisions remain relevant or if it has far-reaching effects on the entire
document, then the same constitutes a revision and not a mere
amendment of the Constitution.
From the foregoing, it is readily apparent that a combination of the
quantitative and qualitative test is necessary in assessing what may be
considered as an amendment or revision. It is not enough that we focus
simply on the physical scope of the proposed changes, but also consider
what it means in relation to the entire document. No clear demarcation
line can be drawn to distinguish the two terms and each circumstance
must be judged on the basis of its own peculiar conditions. The
determination lies in assessing the impact that the proposed changes
may have on the entire instrument, and not simply on an arithmetical
appraisal of the specific provisions which it seeks to affect.
In McFadden v. Jordan,14 the California Supreme Court laid down the
groundwork for the combination of quantitative and qualitative
assessment of proposed constitutional changes, in order to determine
whether the same is revisory or merely amendatory. In that case, the
McFadden court found the proposed changes extensive since at least 15
of the 25 articles contained in the California Constitution would either be
repealed in their entirety or substantially altered, and four new topics
would be introduced. However, it went on to consider the qualitative
effects that the proposed initiative measure would have on California's
basic plan of government. It observed that the proposal would alter the
checks and balances inherent in such plan, by delegating far-reaching and
mixed powers to an independent commission created under the
proposed measure. Consequently, the proposal in McFadden was not only
deemed as broad and numerous in physical scope, but was also held as
having a substantive effect on the fundamental governmental plan of the
State of California.
241
The dual aspect of the amendment/revision analysis was reiterated by the
California Supreme Court in Raven v. Deukmeijan.15 Proposition 115, as the
initiative in that case was called, would vest in the United States Supreme
Court all judicial interpretative powers of the California courts over
fundamental criminal defense rights in that state. It was observed that
although quantitatively, the proposition did "not seem so extensive as to
change directly the substantial entirety of the Constitution by the
deletion or alteration of numerous existing provisions," the same,
nonetheless, "would substantially alter the substance and integrity of the
state Constitution as a document of independent force and effect."
Quoting Amador Valley Joint Union High School District v. State Board of
Equalization,16 the Raven court said:
". . . apart from a measure effecting widespread deletions,
additions and amendments involving many constitutional articles,
'even a relatively simple enactment may accomplish such far
reaching changes in the nature of our basic governmental plan as
to amount to a revision also[A]n enactment which purported to
vest all judicial power in the Legislature would amount to a
revision without regard either to the length or complexity of the
measure or the number of existing articles or sections affected by
such change.'" (Underscoring supplied and citations omitted)
Thus, in resolving the amendment/revision issue, the California Court
examines both the quantitative and qualitative effects of a proposed
measure on its constitutional scheme. Substantial changes in either
respect could amount to a revision.17
I am persuaded that we can approach the present issue in the same
manner. The experience of the courts in California is not far removed
from the standards expounded on by Dean Sinco when he set out to
differentiate between amendment and revision. It is actually consistent,
not only with our traditional concept of the two terms, but also with the
mindset of our constitutional framers when they referred to the
disquisition of Justice Antonio in Javellana.18 We must thus consider
whether the proposed changes in this case affect our Constitution in both
its substantial physical entirety and in its basic plan of government.
The question posed is: do the proposed changes, regardless of whether
these are simple or substantial, amount to a revision as to be excluded
from the people's right to directly propose amendments to the
fundamental law?
As indicated earlier, we may apply the quantitative/qualitative test in
determining the nature of the proposed changes. These tests are
consistent with Dean Sinco's traditional concept of amendment and
revision when he explains that, quantitatively, revision "may result in the
rewriting either of the whole constitution, or the greater part of it, or
perhaps only some of its provisions." In any case, he continues, "the
factor that characterizes it as an act of revision is the original intention
and plan authorized to be carried out." Unmistakably, the latter
statement refers to the qualitative effect of the proposed changes.
It may thus be conceded that, quantitatively, the changes espoused by
the proponents in this case will affect only two (2) out of the eighteen
(18) articles of the 1987 Constitution, namely, Article VI (Legislative
Department) and Article VII (Executive Department), as well as provisions
that will ensure the smooth transition from a presidential-bicameral
system to a parliamentary-unicameral structure of government. The
quantitative effect of the proposed changes is neither broad nor
extensive and will not affect the substantial entirety of the 1987
Constitution.
However, it is my opinion that the proposed changes will have serious
qualitative consequences on the Constitution. The initiative petition, if
successful, will undoubtedly alter, not only our basic governmental plan,
but also redefine our rights as citizens in relation to government. The
proposed changes will set into motion a ripple effect that will strike at the
very foundation of our basic constitutional plan. It is therefore an
impermissible constitutional revision that may not be effected through a
people's initiative.
Petitioners' main proposal pertains to the shifting of our form of
government from the presidential to the parliamentary system. An
examination of their proposal reveals that there will be a fusion of the
executive and legislative departments into one parliament that will be
242
elected on the basis of proportional representation. No term limits are
set for the members of parliament except for those elected under the
party-list system whose terms and number shall be provided by law.
There will be a President who shall be the head of state, but the head of
government is the Prime Minister. The latter and his cabinet shall be
elected from among the members of parliament and shall be responsible
to parliament for the program of government.
The preceding proposal indicates that, under the proposed system, the
executive and legislature shall be one and the same, such that parliament
will be the paramount governing institution. What this implies is that
there will be no separation between the law-making and enforcement
powers of the state, that are traditionally delineated between the
executive and legislature in a presidential form of government.
Necessarily, the checks and balances inherent in the fundamental plan of
our U.S.-style presidential system will be eliminated. The workings of
government shall instead be controlled by the internal political dynamics
prevailing in the parliament.
Our present governmental system is built on the separation of powers
among the three branches of government. The legislature is generally
limited to the enactment of laws, the executive to the enforcement of
laws and the judiciary to the application of laws. This separation is
intended to prevent a concentration of authority in one person or group
that might lead to an irreversible error or abuse in its exercise to the
detriment of our republican institutions. In the words of Justice Laurel,
the doctrine of separation of powers is intended to secure action, to
forestall overaction, to prevent despotism and obtain efficiency.19
In the proposed parliamentary system, there is an obvious lack of formal
institutional checks on the legislative and executive powers of the state,
since both the Prime Minister and the members of his cabinet are drawn
from parliament. There are no effective limits to what the Prime Minister
and parliament can do, except the will of the parliamentary majority. This
goes against the central principle of our present constitutional scheme
that distributes the powers of government and provides for
counteraction among the three branches. Although both the presidential
and parliamentary systems are theoretically consistent with
constitutional democracy, the underlying tenets and resulting
governmental framework are nonetheless radically different.
Consequently, the shift from presidential to parliamentary form of
government cannot be regarded as anything but a drastic change. It will
require a total overhaul of our governmental structure and involve a re-
orientation in the cardinal doctrines that govern our constitutional set-up.
As explained by Fr. Joaquin Bernas, S.J., a switch from the presidential
system to a parliamentary system would be a revision because of its over-
all impact on the entire constitutional structure.20 It cannot, by any
standard, be deemed as a mere constitutional amendment.
An amendment envisages an alteration of one or a few specific
and separable provisions. The guiding original intention of an
amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific
portions that may have become obsolete or that are judged to be
dangerous. In revision, however, the guiding original intention
and plan contemplates a re-examination of the entire document,
or of provisions of the document which have over-all implications
for the entire document, to determine how and to what extent
they should be altered.21 (Underscoring supplied)
The inclusion of a proposal to convene a constituent assembly likewise
shows the intention of the proponents to effect even more far-reaching
changes in our fundamental law. If the original intent were to simply shift
the form of government to the parliamentary system, then there would
have been no need for the calling out of a constituent assembly to
propose further amendments to the Constitution. It should be noted
that, once convened, a constituent assembly can do away and replace
any constitutional provision which may not even have a bearing on the
shift to a parliamentary system of government. The inclusion of such a
proposal reveals the proponents' plan to consider all provisions of the
constitution, either to determine which of its provisions should be altered
or suppressed or whether the whole document should be replaced with
an entirely new one.
243
Consequently, it is not true that only Articles VI and VII are covered by the
alleged people's initiative. The proposal to convene a constituent
assembly, which by its terms is mandatory, will practically jeopardize the
future of the entire Constitution and place it on shaky grounds. The plan
of the proponents, as reflected in their proposed changes, goes beyond
the shifting of government from the presidential to the parliamentary
system. Indeed, it could even extend to the "fundamental nature of our
state as a democratic and republican state."
To say that the proposed changes will affect only the constitution of
government is therefore a fallacy. To repeat, the combined effect of the
proposed changes to Articles VI and VII and those pertaining to the
Transitory Provisions under Article XVIII indubitably establish the intent
and plan of the proponents to possibly affect even the constitutions of
liberty and sovereignty. Indeed, no valid reason exists for authorizing
further amendments or revisions to the Constitution if the intention of
the proposed changes is truly what it purports to be.
There is no question here that only amendments to the Constitution may
be undertaken through a people's initiative and not a revision, as
textually reflected in the Constitution itself. This conclusion is inevitable
especially from a comparative examination of Section 2 in relation to
Sections 1 and 4 of Article XVII, which state:
SECTION 1. Any amendment to, or revision of, this Constitution
may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its
Members; or
(2) A constitutional convention.
SECTION 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a petition
of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by
at least three per centum of the registered voters therein. No
amendment under this section shall be authorized within five
years following the ratification of this Constitution nor oftener
than once every five years thereafter.
The Congress shall provide for the implementation of the exercise
of this right.
xxxx
SECTION 4. Any amendment to, or revision of, this Constitution
under Section 1 hereof shall be valid when ratified by a majority of
the votes cast in a plebiscite which shall be held not earlier than
sixty days nor later than ninety days after the approval of such
amendment or revision.
Any amendment under Section 2 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall
be held not earlier than sixty days nor later than ninety days after
the certification by the Commission of Elections of the sufficiency
of the petition. (Underscoring supplied)
It is clear that the right of the people to directly propose changes to the
Constitution is limited to amendments and does not include a revision
thereof. Otherwise, it would have been unnecessary to provide for
Section 2 to distinguish its scope from the rights vested in Congress under
Section 1. The latter lucidly states that Congress may propose both
amendments and a revision of the Constitution by either convening a
constituent assembly or calling for a constitutional convention. Section 2,
on the other hand, textually commits to the people the right to propose
only amendments by direct action.
To hold, therefore, that Section 2 allows substantial amendments
amounting to revision obliterates the clear distinction in scope between
Sections 1 and 2. The intention, as may be seen from a cursory perusal of
the above provisions, is to provide differing fields of application for the
three modes of effecting changes to the Constitution. We need not even
delve into the intent of the constitutional framers to see that the
244
distinction in scope is definitely marked. We should thus apply these
provisions with a discerning regard for this distinction. Again, McFadden22
is instructive:
". . . The differentiation required is not merely between two
words; more accurately it is between two procedures and
between their respective fields of application. Each procedure, if
we follow elementary principles of statutory construction, must
be understood to have a substantial field of application, not to be
x x x a mere alternative procedure in the same field. Each of the
two words, then, must be understood to denote, respectively,
not only a procedure but also a field of application appropriate to
its procedure. The people of this state have spoken; they made it
clear when they adopted article XVIII and made amendment
relatively simple but provided the formidable bulwark of a
constitutional convention as a protection against improvident or
hasty (or any other) revision, that they understood that there was
a real difference between amendment and revision. We find
nothing whatsoever in the language of the initiative amendment
of 1911 (art. IV, 1) to effect a breaking down of that difference.
On the contrary, the distinction appears to be x x x scrupulously
preserved by the express declaration in the amendment x x x that
the power to propose and vote on "amendments to the
Constitution" is reserved directly to the people in initiative
proceedings, while leaving unmentioned the power and the
procedure relative to constitutional revision, which revisional
power and procedure, it will be remembered, had already been
specifically treated in section 2 of article XVIII. Intervenors'
contention--that any change less than a total one is but
amendatory--would reduce to the rubble of absurdity the bulwark
so carefully erected and preserved. Each situation involving the
question of amendment, as contrasted with revision, of the
Constitution must, we think, be resolved upon its own facts."
Thus, our people too have spoken when they overwhelmingly ratified the
1987 Constitution, with the provisions on amendments and revisions
under Article XVII. The voice and will of our people cannot be any clearer
when they limited people's initiative to mere amendments of the
fundamental law and excluded revisions in its scope. In this regard, the
task of the Court is to give effect to the people's voice, as expressed
unequivocally through the Constitution.
Article XVII on amendments and revisions is called a "constitution of
sovereignty" because it defines the constitutional meaning of
"sovereignty of the people." It is through these provisions that the
sovereign people have allowed the expression of their sovereign will and
have canalized their powers which would otherwise be plenary. By
approving these provisions, the sovereign people have decided to limit
themselves and future generations in the exercise of their sovereign
power.23 They are thus bound by the constitution and are powerless,
whatever their numbers, to change or thwart its mandates, except
through the means prescribed by the Constitution itself.24
It is thus misplaced to argue that the people may propose revisions to the
Constitution through people's initiative because their representatives,
whose power is merely delegated, may do so. While Section 1 of Article
XVII may be considered as a provision delegating the sovereign powers
of amendment and revision to Congress, Section 2, in contrast, is a self-
limitation on that sovereign power. In the words of Cooley:
x x x Although by their constitutions the people have delegated
the exercise of sovereign powers to the several departments,
they have not thereby divested themselves of the sovereignty.
They retain in their own hands, so far as they have thought it
needful to do so, a power to control the governments they
create, and the three departments are responsible to and subject
to be ordered, directed, changed or abolished by them. But this
control and direction must be exercised in the legitimate mode
previously agreed upon. The voice of the people, acting in their
sovereign capacity, can be of legal force only when expressed at
the times and under the conditions which they themselves have
prescribed and pointed out by the Constitution, or which,
consistently with the Constitution, have been prescribed and
pointed out for them by statute; and if by any portion of the
people, however large, an attempt should be made to interfere
with the regular working of the agencies of government at any
245
 other time or in any other mode than as allowed by existing law, RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH
either constitutional or statutory, it would be revolutionary in 6,327,952 REGISTERED VOTERS, petitioners,
character, and must be resisted and repressed by the officers vs.
who, for the time being, represent legitimate government.25 THE COMMISSION ON ELECTIONS, respondent.
(Underscoring supplied) TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-
intervenors,
Consequently, there is here no case of "the spring rising above its RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA,
source." Nor is it one where the people's sovereign power has been petitioners-intervenors,
relegated to a lesser plane than that of Congress. In choosing to exercise SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-intervenor,
self-limitation, there is no absence or lack of even a fraction of the PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION
sovereign power of the people since self-limitation itself is an expression (PTGWO) AND VICTORINO F. BALAIS, petitioners-intervenors,
of that sovereign power. The people have chosen to delegate and limit ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L.
their sovereign power by virtue of the Constitution and are bound by the QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE AND CARLOS P.
parameters that they themselves have ordained. Otherwise, if the people MEDINA, JR., oppositors-intervenors,
choose to defy their self-imposed constitutional restraints, we will be ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor,
faced with a revolutionary situation.26 ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor,
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL
It has repeatedly been emphasized that ours is a democratic and BISHOPS FROUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY,
republican state.27 Even as we affirm, however, that aspect of direct ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS,LEONARDO SAN JOSE,
democracy, we should not forget that, first and foremost, we are a JOJO PINEDA, DR. DARBY SANTIAGO, AND DR. REGINALD PAMUGAS,
constitutional democracy. To uphold direct democracy at the expense of oppositors-intervenors,
the fundamental law is to sanction, not a constitutional, but an extra- LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA
constitutional recourse. This is clearly beyond the powers of the Court HONTIVEROS-BARAQUEL, oppositors-intervenors,
who, by sovereign mandate, is the guardian and keeper of the LUWALHATI ANTONINO, oppositor-intervenor,
Constitution. PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO
F.ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M.
IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in G.R. No. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS AND
174153. AMADO GAT INCION, oppositors-intervenors,
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR. AND SENATORS
SERGIO R. OSMENA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCIRO-
CONSUELO YNARES-SANTIAGO
ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM, AND PANFILO M.
Associate Justice
LACSON, oppositors-intervenors,
JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG PILIPINO,
____________________ oppositors-intervenors,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER,
EN BANC oppositors-intervenors,
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA A. LAT,
G.R. NO. 174153 ANTONIO L. SALVADOR AND RANDALL C. TABAYOYONG, oppostors-
246
intervenors,
SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT,
MANUEL VILLAR, JR., oppositor-intervenor;
G.R. NO. 174299
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND RENE A. Q.
SAGUISAG, petitioners,
vs.
COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN BENJAMIN
S. ABALOS, SR. AND COMMISSIONERS RESSURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR. ROMEO A. BRAWNER, RENE V.
SARMIENTO AND JOHN DOE AND PETER DOE, respondents.
x ---------------------------------------------------------------------------------------- x
CONCURRING OPINION
SANDOVALGUTIERREZ, J.:
Vox populi vox Dei -- the voice of the people is the voice of God. Caution
should be exercised in choosing one's battlecry, lest it does more harm
than good to one's cause. In its original context, the complete version of
this Latin phrase means exactly the opposite of what it is frequently
taken to mean. It originated from a holy man, the monk Alcuin, who
advised Charlemagne, "nec audiendi qui solent dicere vox populi vox Dei
quum tumultuositas vulgi semper insaniae proxima sit," meaning, "And
those people should not be listened to who keep on saying, 'The voice of
the people is the voice of God,' since the riotousness of the crowd is
always very close to madness."1 Perhaps, it is by providence that the true
meaning of the Latin phrase is revealed upon petitioners and their allies
that they may reflect upon the sincerity and authenticity of their
"people's initiative."
History has been a witness to countless iniquities committed in the name
of God. Wars were waged, despotism tolerated and oppressions justified
all these transpired as man boasted of God's imprimatur. Today,
petitioners and their allies hum the same rallying call, convincing this
Court that the people's initiative is the "voice of the people" and,
therefore, the "voice of God." After a thorough consideration of the
petitions, I have come to realize that man, with his ingenuity and
arrogance, has perfected the craft of imitating the voice of God. It is
against this kind of genius that the Court must guard itself.
The facts of the case are undisputed.
In 1996, the Movement for People's Initiative sought to exercise the
power of initiative under Section 2, Article XVII of the Constitution which
reads:
Section 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a petition
of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by
at least three per centum of the registered voters therein. No
amendment under this section shall be authorized within five
years following the ratification of this Constitution nor oftener
than once every five years thereafter,
The Congress shall provide for the implementation of the
exercise of this right.
The exercise was thwarted by a petition for prohibition filed with this
Court by Senator Miriam Defensor Santiago, et al., entitled "Miriam
Defensor Santiago, Alexander Padilla and Maria Isabel Ongpin, petitioners,
v. Commission on Elections (COMELEC), Jesus Delfin, Alberto Pedrosa and
Carmen Pedrosa, in their capacities as founding members of the People's
Initiative for Reforms, Modernization and Action (PIRMA), respondents."2
The case was docketed as G.R. No. 127325. On March 19, 1997, this Court
rendered its Decision in favor of petitioners, holding that Republic Act No.
6735 (R.A. No. 6735), An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, is "incomplete,
inadequate, or wanting in essential terms and conditions insofar as
initiative on amendments to the Constitution is concerned." A majority
of eight (8) Justices fully concurred with this ruling, while five (5)
247
subscribed to the opposite view. One (1) opined that there is no need to
rule on the adequacy of R.A. No. 6735.
On motion for reconsideration, two (2) of the eight (8) Justices
reconsidered their positions. One (1) filed an inhibition and the other one
(1) joined the minority opinion. As a consequence, of the thirteen (13)
Justices who participated in the deliberation, six (6) voted in favor of the
majority opinion, while the other six (6) voted in favor of the minority
opinion.3
A few months thereafter, or on September 23, 1997, the Court dismissed
a similar case, entitled People's Initiative for Reform, Modernization and
Action (PIRMA) v. Commission on Elections4 on the ground that the
COMELEC did not commit grave abuse of discretion when it dismissed
PIRMA's Petition for Initiative to Propose Amendments to the Constitution
"it appearing that that it only complied with the dispositions in the
Decision of the Court in G.R. no. 127325 (Santiago v. COMELEC)
promulgated on March 19, 1997, and its Resolution of June 10, 1997."
Seven (7) Justices voted that there was no need to re-examine its ruling,
as regards the issue of the sufficiency of R.A. No. 6735. Another Justice
concurred, but on the different premise that the case at bar is not the
proper vehicle for such re-examination. Five (5) Justice opined otherwise.
This time, another group known as Sigaw ng Bayan, in coordination with
the Union of Local Authorities of the Philippines (ULAP), have gathered
signatures in support of the proposed amendments to the Constitution,
which entail a change in the form of government from bicameral-
presidential to unicameral-parliamentary, thus:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to
read as follows:
Section 1. (1) The legislative and executive powers shall be vested
in a unicameral Parliament which shall be composed of as many
members as may be provided by law, to be apportioned among
the provinces, representative districts, and cities in accordance
with the number of their respective inhabitants, with at least
three hundred thousand inhabitants per district, and on the basis
of a uniform and progressive ratio. Each district shall comprise, as
far as practicable, contiguous, compact and adjacent territory,
and each province must have at least one member.
(2) Each Member of Parliament shall be a natural-born citizen of
the Philippines, at least twenty-five years old on the day of the
election, a resident of his district for at least one year prior
thereto, and shall be elected by the qualified voters of his district
for a term of five years without limitation as to the number
thereof, except those under the party-list system which shall be
provided for by law and whose number shall be equal to twenty
per centum of the total membership coming from the
parliamentary districts.
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are
hereby amended to read, as follows:
Section 1. There shall be a President who shall be the Head of
State. The executive power shall be exercised by a Prime Minister,
with the assistance of the Cabinet. The Prime Minister shall be
elected by a majority of all the Members of Parliament from
among themselves. He shall be responsible to the Parliament for
the program of government.
C. For the purpose of insuring an orderly transition from the
bicameral-Presidential to a unicameral-Parliamentary form of
government, there shall be a new Article XVIII, entitled
"Transitory Provisions," which shall read, as follows:
Section 1. (1) The incumbent President and Vice President shall
serve until the expiration of their term at noon on the thirtieth
day of June 2010 and shall continue to exercise their powers
under the 1987 Constitution unless impeached by a vote of two
thirds of all the members of the interim parliament.
(2) In case of death, permanent disability, resignation or removal
from office of the incumbent President, the incumbent Vice
248
President shall succeed as President. In case of death, permanent
disability, resignation or removal from office of both the
incumbent President and Vice President, the interim Prime
Minister shall assume all the powers and responsibilities of Prime
Minister under Article VII as amended.
Section 2. Upon the expiration of the term of the incumbent
President and Vice President, with the exception of Sections 1, 2,
3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall
hereby be amended and Sections 18 and 24 which shall be
deleted, all other Sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatium up to 26,
unless they are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to conform
with a unicameral parliamentary form of government; provided,
however, that any and all references therein to "Congress,"
"Senate," "House of Representatives" and "Houses of Congress"
shall be changed to read "Parliament;" that any and all references
therein to "Member(s) of Congress," "Senator(s)" or "Member(s)
of Parliament" and any and all references to the "President"
and/or "Acting President" shall be changed to read "Prime
Minister."
Section 3. Upon the expiration of the term of the incumbent
President and Vice President, with the exception of Sections 1, 2, 3
and 4 of Article VII of the 1987 Constitution which are hereby be
amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby
deleted, all other Sections of Article VII shall be retained and
renumbered sequentially as Section 2, ad seriatim up to 14, unless
they shall be inconsistent with Section 1 hereof, in which case
they shall be deemed amended so as to conform to a unicameral
Parliamentary System of government; provided, however, that
any and all references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be changed to
read "Parliament;" that any and all references therein to
"Member(s) of Congress," "Senator(s)" or "Member(s) of the
House of Representatives" shall be changed to read as
"Member(s) of Parliament" and any and all references to the
"President" and/or "Acting President" shall be changed to read
"Prime Minister."
Section 4. (1) There shall exist, upon the ratification of these
amendments, an interim Parliament which shall continue until the
Members of the regular Parliament shall have been elected and
shall have qualified. It shall be composed of the incumbent
Members of the Senate and the House of Representatives and
the incumbent Members of the Cabinet who are heads of
executive departments.
(2) The incumbent Vice President shall automatically be a Member
of Parliament until noon of the thirtieth day of June 2010. He shall
also be a member of the cabinet and shall head a ministry. He
shall initially convene the interim Parliament and shall preside
over its sessions for the election of the interim Prime Minister and
until the Speaker shall have been elected by a majority vote of all
the members of the interim Parliament from among themselves.
(3) Senators whose term of office ends in 2010 shall be Members
of Parliament until noon of the thirtieth day of June 2010.
(4) Within forty-five days from ratification of these amendments,
the interim Parliament shall convene to propose amendments to,
or revisions of, this Constitution consistent with the principles of
local autonomy, decentralization and a strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief
Executive, shall nominate, from among the members of the
interim Parliament, an interim Prime Minister, who shall be
elected by a majority vote of the members thereof. The interim
Prime Minister shall oversee the various ministries and shall
perform such powers and responsibilities as may be delegated to
him by the incumbent President."
(2) The interim Parliament shall provide for the election of the
members of Parliament which shall be synchronized and held
249
 simultaneously with the election of all local government officials.
The duty elected Prime Minister shall continue to exercise and
perform the powers, duties and responsibilities of the interim
Prime Minister until the expiration of the term of the incumbent
President and Vice President.
Sigaw ng Bayan prepared signature sheets, and written on its upper right
hand portion is the abstract of the proposed amendments, quoted as
follows:
Abstract: Do you approve of the amendment of Article VI and VII
of the 1987 Constitution, changing the form of government from
the present bicameral-presidential to a unicameral-parliamentary
system of government, in order to achieve greater efficiency,
simplicity and economy in government; and providing an Article
XVIII as Transitory Provisions for the orderly shift from one
system to another?
On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado, herein
petitioners, filed with the COMELEC a Petition for Initiative to Amend the
Constitution.5 Five (5) days thereafter, they filed an Amended Petition
alleging that they are filing the petition in their own behalf and together
with some 6.3 million registered voters who have affixed their
signatures on the signature sheets attached thereto. They claimed that
the signatures of registered voters appearing on the signature sheets,
constituting at least twelve per cent (12%) of all registered voters in the
country, wherein each legislative district is represented by at least three
per cent (3%) of all the registered voters, were verified by their respective
city or municipal election officers.
Several organizations opposed the petition. 6
In a Resolution dated August 31, 2006, the COMELEC denied due course
to the petition, citing as basis this Court's ruling in Santiago, permanently
enjoining it "from entertaining or taking cognizance of any petition for
initiative on amendments to the Constitution until a sufficient law shall
have been validly enacted to provide for the implementation of the
system."
Hence, the present petition for certiorari and mandamus praying that this
Court set aside the COMELEC Resolution and direct the latter tocomply
with Section 4, Article XVII of the Constitution, which provides:
Sec. 4 x x x
Any amendment under Section 2 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall
be held not earlier than sixty days nor later than ninety days after
the certification by the Commission on Elections of the sufficiency
of the petition.
I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153 and
grant the petition of Mar-len Abigail Binay, et al. in G.R. No. 174299. Here,
petitioners pray that the COMELEC Chairman and Commissioners be
required to show why they should not be punished for contempt7 of
court for disregarding the permanent injunction issued by this Court in
Santiago.
I
Respondent COMELEC did not act with grave abuse of discretion
Without necessarily brushing aside the other important issues, I believe
the resolution of the present petition hinges on this singular issue -- did
the COMELEC commit grave abuse of discretion when it denied Lambino, et
al.'s petition for initiative to amend the Constitution on the basis of this
Court's Decision in Santiago v. COMELEC?
In other words, regardless of how the other remaining issues are
resolved, still, the ultimate yardstick is the attendance of "grave abuse of
discretion" on the part of the COMELEC.
Jurisprudence teaches that an act of a court or tribunal may only be
considered as committed in grave abuse of discretion when the same was
performed in a capricious or whimsical exercise of judgment. The abuse
of discretion must be so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform a duty enjoined by law, or
250
to act at all in contemplation of law, as where the power is exercised in
an arbitrary and despotic manner by reason of passion or personal
hostility.8
The Resolution of respondent COMELEC denying due course to the
petition for initiative on the basis of a case (Santiago) decided by this
Court cannot, in any way, be characterized as "capricious or whimsical,"
"patent and gross," or "arbitrary and despotic." On the contrary, it was
the most prudent course to take. It must be stressed that in Santiago, this
Court permanently enjoins respondent COMELEC "from entertaining or
taking cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted." It
being a fact that Congress has not enacted a sufficient law, respondent
COMELEC has no alternative but to adhere to Santiago. Otherwise, it is
vulnerable to a citation for contempt. As succinctly stated by Chief Justice
Artemio V. Panganiban (then Associate Justice) in his Separate Opinion in
the subsequent case of PIRMA vs. COMELEC:9
x x x I cannot fault the Comelec for complying with the ruling
even if it, too, disagreed with said decision's ratio decidendi.
Respondent Comelec was directly enjoined by the highest Court
of the land. It had no choice but to obey. Its obedience cannot
constitute grave abuse of discretion. Refusal to act on the PIRMA
petition was the only recourse open to the Comelec. Any other
mode of action would have constituted defiance of the Court and
would have been struck down as grave abuse of discretion and
contumacious disregard of this Court's supremacy as the final
arbiter of justiciable controversies.
It need not be emphasized that in our judicial hierarchy, this Court reigns
supreme. All courts, tribunals and administrative bodies exercising quasi-
judicial functions are obliged to conform to its pronouncements. It has
the last word on what the law is; it is the final arbiter of any justifiable
controversy. In other words, there is only one Supreme Court from
whose decisions all other courts should take their bearings.10 As a
warning to lower court judges who would not adhere to its rulings, this
Court, in People v. Santos,11 held:
Now, if a judge of a lower Court feels, in the fulfillment of his
mission of deciding cases, that the application of a doctrine
promulgated by this Superiority is against his way of reasoning, or
against his conscience, he may state his opinion on the matter,
but rather than disposing of the case in accordance with his
personal views he must first think that it is his duty to apply the
law as interpreted by the Highest Court of the Land, and that any
deviation from a principle laid down by the latter would
unavoidably cause, as a sequel, unnecessary inconveniences,
delays and expenses to the litigants. And if despite of what is here
said, a Judge still believes that he cannot follow Our rulings, then
he has no other alternative than to place himself in the position
that he could properly avoid the duty of having to render
judgment on the case concerned (Art. 9, C.C.), and he has only
one legal way to do that.
Clearly, respondent COMELEC did not gravely abuse its discretion in
dismissing the petition of Lambino, et al. for it merely followed this
Court's ruling in Santiago.
Significantly, in PIRMA vs. COMELEC,12 a unanimous Court implicitly
recognized that its ruling in Santiago is the established doctrine and that
the COMELEC did not commit grave abuse of discretion in invoking it,
thus:
The Court ruled, first, by a unanimous vote, that no grave abuse
of discretion could be attributed to the public respondent
COMELEC in dismissing the petition filed by PIRMA therein, it
appearing that it only complied with the dispositions of this Court
in G.R. No. 127325 promulgated on March 19, 1997, and its
resolution on June 10, 1997.
Indeed, I cannot characterize as a "grave abuse of discretion" the
COMELEC's obedience and respect to the pronouncement of this Court in
Santiago.
251
II
The doctrine of stare decisis
bars the re-examination of Santiago
It cannot be denied that in Santiago, a majority of the members of this
Court or eight (8) Justices (as against five (5) Justices) concurred in
declaring R.A. No. 6735 an insufficient law. When the motion for
reconsideration was denied via an equally-divided Court or a 6-6 vote, it
does not mean that the Decision was overturned. It only shows that the
opposite view fails to muster enough votes to modify or reverse the
majority ruling. Therefore, the original Decision was upheld.13 In Ortigas
and Company Limited Partnership vs. Velasco,14 this Court ruled that the
denial of a motion or reconsideration signifies that the ground relied
upon have been found, upon due deliberation, to be without merit, as
not being of sufficient weight to warrant a modification of the judgment
or final order.
With Santiago being the only impediment to the instant petition for
initiative, petitioners persistently stress that the doctrine of stare decisis
does not bar its re-examination.
I am not convinced. The maxim stare decisis et non quieta movere
translates "stand by the decisions and disturb not what is settled."15 As
used in our jurisprudence, it means that "once this Court has laid down a
principle of law as applicable to a certain state of facts, it would adhere
to that principle and apply it to all future cases in which the facts are
substantially the same as in the earlier controversy."16
There is considerable literature about whether this doctrine of stare
decisis is a good or bad one, but the doctrine is usually justified by
arguments which focus on the desirability of stability and certainty in the
law and also by notions of justice and fairness. Justice Benjamin Cardozo
in his treatise, The Nature of the Judicial Process stated:
It will not do to decide the same question one way between one
set of litigants and the opposite way between another. 'If a group
of cases involves the same point, the parties expect the same
decision. It would be a gross injustice to decide alternate cases
on opposite principles. If a case was decided against me
yesterday when I was a defendant, I shall look for the same
judgment today if I am plaintiff. To decide differently would
raise a feeling of resentment and wrong in my breast; it would
be an infringement, material and moral, of my rights."
Adherence to precedent must then be the rule rather than the
exception if litigants are to have faith in the even-handed
administration of justice in the courts.17
That the doctrine of stare decisis is related to justice and fairness may be
appreciated by considering the observation of American philosopher
William K. Frankena as to what constitutes injustice:
The paradigm case of injustice is that in which there are two
similar individuals in similar circumstances and one of them is
treated better or worse than the other. In this case, the cry of
injustice rightly goes up against the responsible agent or group;
and unless that agent or group can establish that there is some
relevant dissimilarity after all between the individuals concerned
and their circumstances, he or they will be guilty as charged.18
Although the doctrine of stare decisis does not prevent re-examining and,
if need be, overruling prior decisions, "It is x x x a fundamental
jurisprudential policy that prior applicable precedent usually must be
followed even though the case, if considered anew, might be decided
differently by the current justices. This policy x x x 'is based on the
assumption that certainty, predictability and stability in the law are the
major objectives of the legal system; i.e., that parties should be able to
regulate their conduct and enter into relationships with reasonable
assurance of the governing rules of law.19 Accordingly, a party urging
overruling a precedent faces a rightly onerous task, the difficulty of which
is roughly proportional to a number of factors, including the age of the
precedent, the nature and extent of public and private reliance on it, and
its consistency or inconsistency with other related rules of law. Here,
petitioners failed to discharge their task.
Santiago v. COMELEC was decided by this Court on March 19, 1997 or more
than nine (9) years ago. During that span of time, the Filipino people,
252
specifically the law practitioners, law professors, law students, the entire
judiciary and litigants have recognized this Court's Decision as a
precedent. In fact, the Santiago doctrine was applied by this Court in the
subsequent case of PIRMA. Even the legislature has relied on said
Decision, thus, several bills have been introduced in both Houses of
Congress to cure the deficiency. I cannot fathom why it should be
overturned or set aside merely on the basis of the petition of Lambino, et
al. Indeed, this Court's conclusion in Santiago that R.A. No. 6735 is
incomplete, inadequate or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned
remains a precedent and must be upheld.
III
The proposed constitutional changes constitute revisions and not mere
amendments
Article XVII of the 1987 Constitution lays down the means for its
amendment and revision. Thus:
Section 1. Any amendment to, or revision of, this Constitution
may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its
members; or
(2) A Constitutional Convention.
Section 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a petition
of at least twelve per centum of the total number of registered
votes, of which every legislative district must be represented by
at least three per centum of the registered voters therein. x x x.
(Emphasis supplied)
At the outset, it must be underscored that initiative and referendum, as
means by which the people can directly propose changes to the
Constitution, were not provided for in the 1935 and 1973 Constitutions.
Thus, under these two (2) Constitutions, there was no demand to draw
the distinction between an amendment and a revision, both being
governed by a uniform process. This is not so under our present
Constitution. The distinction between an amendment and a revision
becomes crucial because only amendments are allowed under the system
of people's initiative. Revisions are within the exclusive domain of
Congress, upon a vote of three-fourths of all its members, or of a
Constitutional Convention.
The deliberations of the 1986 Constitutional Commission is explicit that
Section 2, Article XVII covers only amendments, thus:
The sponsor, Commissioner Suarez, is recognized.
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of the
Commission that pursuant to the mandate given us last night, we
submitted this afternoon a complete Committee Report No. 7
which embodies the proposed provision governing initiative. This
is now covered by Section 2 of the complete committee report.
With the permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last
plebiscite held, directly propose amendments to this Constitution
thru initiative upon petition of at least ten percent of the
registered voters.
This completes the blanks appearing in the original Committee
Report No. 7. This proposal was suggested on the theory that this
matter of initiative which came about because of the
extraordinary developments this year, has to be separated from
the traditional modes of amending the Constitution as embodied
in Section 1. The committee members felt that this system of
initiative should be limited to amendments to the Constitution
and should not extend to the revision of the entire Constitution,
253
 so we removed it from the operation of Section 1 of the
proposed Article on Amendment or Revision.
xxx xxx xxx
MR. MAAMBONG: Madam President, will the distinguished
proponent of the amendment yield to a few questions?
MR. DAVIDE: With pleasure, Madam President.
MR. MAAMBONG: My first question, Commissioner Davide's
proposed amendment on line I refers to "amendments." Does it
not cover the word "revision" as defined by Commissioner
Padilla when he made the distinction between the words
"amendments" and "revision?"
MR. DAVIDE: No, it does not, because "amendments" and
"revision" should be covered by Section 1. So insofar as initiative
is concerned, it can only relate to "amendments" not "revision"
MR. MAAMBONG: Thank you.20
Considering that the initiative on the Constitution only permits
amendments, it is imperative to examine whether petitioners' proposed
changes partake of the nature of amendments, not revisions.
The petition for initiative filed with the COMELEC by Lambino, et al.
sought to amend the following provisions of the 1987 Constitution:
Sections 1, 2, 3, 4, 5, 6, and 7 of Article VI (The Legislative Department);
Sections 1, 2, 3 and 4 of Article VII (The Executive Department). It further
includes Article XVIII (Transitory Provisions) for the purpose of insuring an
orderly transition from the bicameral-presidential to a unicameral-
parliamentary form of government.
Succinctly, the proposals envision a change in the form of government,
from bicameral-presidential to unicameral-parliamentary; conversion of
the present Congress of the Philippines to an Interim National Assembly;
change in the terms of Members of Parliament; and the election of a
Prime Minister who shall be vested with executive power.
Petitioners contend that the proposed changes are in the nature of
amendments, hence, within the coverage of a "people's initiative."
I disagree.
The noted constitutionalist, Father Joaquin G. Bernas, S.J., who was also a
member of the 1986 Constitutional Commission, characterized an
amendment and a revision to the Constitution as follows:
An amendment envisages an alteration of one or a few specific
and separable provisions. The guiding original intention of an
amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific
portions that may have become obsolete or that are judged to be
dangerous. In revision however, the guiding original intention
and plan contemplates a re-examination of the entire document,
or of provisions of the document which have over-all
implications for the document to determine how and to what
extent they should be altered.21
Obviously, both "revision" and amendment" connote change; any
distinction between the two must be based upon the degree of change
contemplated. In Kelly v. Laing,22 the Supreme Court of Michigan made
the following comparison of the two terms:
"Revision" and "amendment" have the common characteristics of
working changes in the charter, and are sometimes used in
exactly the same sense but there is an essential difference
between them.
"Revision" implies a reexamination of the whole law and a
redraft without obligation to maintain the form, scheme, or
structure of the old. As applied to fundamental law, such as a
constitution or charter, it suggests a convention to examine the
254
 whole subject and to prepare and submit a new instrument
whether the desired changes from the old are few or many.
Amendment implies continuance of the general plan and
purpose of the law, with corrections to better accomplish its
purpose. Basically, revision suggests fundamental change, while
amendment is a correction of detail.
Although there are some authorities which indicate that a change in a
city's form of government may be accomplished by a process of
"amendment," the cases which so hold seem to involve statutes which
only distinguish between amendment and totally new charters.23
However, as in Maine law, where the statute authorizing the changes
distinguishes between "charter amendment" and "charter revision," it
has been held that "(a) change in the form of government of a home
rule city may be made only by revision of the city charter, not by its
amendment."24
In summary, it would seem that any major change in governmental form
and scheme would probably be interpreted as a "revision" and should be
achieved through the more thorough process of deliberation.
Although, at first glance, petitioners' proposed changes appear to cover
isolated and specific provisions only, however, upon careful scrutiny, it
becomes clear that the proposed changes will alter the very structure of
our government and create multifarious ramifications. In other words,
the proposed changes will have a "domino effect" or, more
appropriately, "ripple effect" on other provisions of the Constitution.
At this juncture, it must be emphasized that the power reserved to the
people to effect changes in the Constitution includes the power to amend
anysection in such a manner that the proposed change, if approved,
would "be complete within itself, relate to one subject and not
substantially affect any other section or article of the Constitution or
require further amendments to the Constitution to accomplish its
purpose."25 This is clearly not the case here.
Firstly, a shift from a presidential to a parliamentary form of government
affects the well-enshrined doctrine of separation of powers of
government, embodied in our Constitution, by providing for an Executive,
Legislative and Judiciary Branches. In a Parliamentary form of
government, the Executive Branch is to a certain degree, dependent on
the direct or indirect support of the Parliament, as expressed through a
"vote of confidence." To my mind, this doctrine of separation of powers
is so interwoven in the fabric of our Constitution, that any change
affecting such doctrine must necessarily be a revision.
In McFadden vs. Jordan,26 the California Supreme Court ruled as follows:
It is thus clear that that a revision of the Constitution may be
accomplished only through ratification by the people of a revised
constitution proposed by a convention called for that purpose x x
x. Consequently, if the scope of the proposed initiative measure
now before us is so broad that if such measure became law a
substantial revision of our present state Constitution would be
effected, then the measure may not properly be submitted to
the electorate until and unless it is first agreed upon by a
constitutional convention. x x x.
Secondly, the shift from a bicameral to a unicameral form of government
is not a mere amendment, but is in actuality a revision, as set forth in
Adams v. Gunter27:
The proposal here to amend Section I of Article III of the 1968
Constitution to provide for a Unicameral Legislature affects not
only many other provisions of the Constitution but provides for
a change in the form of the legislative branch of government,
which has been in existence in the United States Congress and in
all of the states of the nation, except one, since the earliest days.
It would be difficult to visualize a more revolutionary change.
The concept of a House and a Senate is basic in the American
form of government. It would not only radically change the
whole pattern of the government in this state and tear apart the
whole fabric of the Constitution, but would even affect the
physical facilities necessary to carry on government.
255
Thirdly, the proposed changes, on their face, signify revisions rather than
amendments, especially, with the inclusion of the following "omnibus
provision":
C. For the purpose of insuring an orderly transition from the
bicameral-Presidential to a unicameral-Parliamnetary form of
government, there shall be a new Article XVIII, entitled
"Transitory Provisions" which shall read, as follows:
xxxxxxxxx
Section 3. Upon the expiration of the term of the incumbent
President and Vice-President, with the exceptions of Section 1,2,3
and 4 of Article VII of the 1987 Constitution which are hereby
amended x x x x x x and all other Sections of Article VII shall be
retained and numbered sequentially as Section 2, ad seriatim up
to 14, unless they shall be inconsistent with Section 1 hereof, in
which case they shall be deemed amended so as to conform to a
unicameral Parliamentary system of government x x x x x x .
xxxxxxxxx
Section 4. (1) x x x
(3) Within forty-five days from ratification of these amendments,
the Interim Parliament shall convene to propose amendments to,
or revisions of, this Constitution, consistent with the principles of
local autonomy, decentralization and a strong bureaucracy.
The above provisions will necessarily result in a "ripple effect" on the
other provisions of the Constitution to make them conform to the
qualities of unicameral-parliamentary form of government. With one
sweeping stroke, these proposed provisions automatically revise some
provisions of the Constitution. In McFadden, the same practice was
considered by the Court to be in the nature of substantial revision,
necessitating a constitutional convention. I quote the pertinent portion
of its ruling, thus:
There is in the measure itself, no attempt to enumerate the
various and many articles and sections of our present
Constitution which would be affected, replaced or repealed. It
purports only to add one new article but its framers found it
necessary to include the omnibus provision (subdivision (7) of
section XII) that "If any section, subsection, sentence, clause or
phrase of the constitution is in conflict with any of the provisions
of this article, such section, subsection, sentence, clause, or
phrase is to the extent of such conflict hereby repealed. x x x
Consequently, if the scope of the proposed intitiative measure
now before us is so broad that if such measure become law a
substantial revision of our present state Constitution would be be
effected, then the measure may not properly be submitted to the
electorate until and unless it is first agreed upon by a
constitutional convention.28
Undoubtedly, the changes proposed by the petitioners are not mere
amendments which will only affect the Articles or Sections sought to be
changed. Rather, they are in the nature of revisions which will affect
considerable portions of the Constitution resulting in the alteration of our
form of government. The proposed changes cannot be taken in isolation
since these are connected or "interlocked" with the other provisions of
our Constitution. Accordingly, it has been held that: "If the changes
attempted are so sweeping that it is necessary to include the provisions
interlocking them, then it is plain that the plan would constitute a
recasting of the whole Constitution and this, we think, it was intended
to be accomplished only by a convention under Section 2 which has not
yet been disturbed."29
I therefore conclude that since the proposed changes partake of the
nature of a revision of the Constitution, then they cannot be the subject
of an initiative. On this matter, Father Bernas expressed this insight:
But why limit initiative and referendum to simple amendments?
The answer, which one can easily glean from the rather long
deliberation on initiative and referendum in the 1986
Constitutional Commission, is practicality. In other words, who is
to formulate the revision or how is it to be formulated? Revision,
256
 as concretely being proposed now, is nothing less than a
rebuilding of the Philippine constitutional structure. Who were
involved in formulating the structure? What debates ensued?
What records are there for future use in interpreting the
provisions which may be found to be unclear?
In a deliberative body like Congress or a Constitutional
Convention, decisions are reached after much purifying debate.
And while the deliberations proceed, the public has the
opportunity to get involved. It is only after the work of an
authorized body has been completed that it is presented to the
electorate for final judgment. Careful debate is important
because the electorate tends to accept what is presented to it
even sight unseen.30
IV
R.A. No. 6735 is insufficient to implement the People's initiative
Section 2, Article XVII of the 1987 Constitution reads:
Section 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a petition
of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by
at least three per centum of the registered voters therein. No
amendment under this section shall be authorized within five
years following the ratification of this Constitution nor oftener
than once every five years thereafter,
The Congress shall provide for the implementation of the
exercise of this right.
On its face, Section 2 is not a self-executory provision. This means that an
enabling law is imperative for its implementation. Thus, Congress enacted
R.A. No. 6735 in order to breathe life into this constitutional provision.
However, as previously narrated, this Court struck the law in Santiago for
being incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is
concerned.
The passage of time has done nothing to change the applicability of R.A.
No. 6735. Congress neither amended it nor passed a new law to supply its
deficiencies.
Notwithstanding so, this Court is being persuaded to take a 360-degree
turn, enumerating three (3) justifications why R.A. No. 6735 must be
considered a sufficient law, thus:
1) The text of R.A. No. 6735 is replete with references to the right
of people to initiate changes to the Constitution;
2) The legislative history of R.A. No. 6735 reveals the clear intent
of the lawmakers to use it as instrument to implement the
people's initiative; and
3) The sponsorship speeches by the authors of R.A. No. 6735
demonstrate the legislative intent to use it as instrument to
implement people's initiative.
I regret to say that the foregoing justifications are wanting.
A thorough reading of R.A. No. 6735 leads to the conclusion that it covers
only initiatives on national and local legislation. Its references to
initiatives on the Constitution are few, isolated and misplaced. Unlike in
the initiatives on national and local legislation, where R.A. No. 6735
provides a detailed, logical, and exhaustive enumeration on their
implementation,31 however, as regards initiative on the Constitution, the
law merely:
(a) mentions the word "Constitution" in Section 2;32
(b) defines "initiative on the Constitution" and includes it in the
enumeration of the three systems of initiative in Section 3;33
257
 (c) speaks of "plebiscite" as the process by which the proposition
in an initiative on the Constitution may be approved or rejected
by the people;34
(d) reiterates the constitutional requirements as to the number of
voters who should sign the petition;35 and
(e) provides the date for the effectivity of the approved
proposition.36
In other words, R.A. No. 6735 does not specify the procedure how
initiative on the Constitution may be accomplished. This is not the
enabling law contemplated by the Constitution. As pointed out by
oppositor-intervenor Alternative Law Groups Inc., since the promulgation
of the Decision in Santiago, various bills have been introduced in both
Houses of Congress providing for a complete and adequate process for
people's initiative, such as:
Names, signatures and addresses of petitioners who shall be
registered voters;
A statement of the provision of the Constitution or any part
thereof sought to be amended and the proposed amendment;
The manner of initiation - in a congressional district through a
petition by any individual, group, political party or coalition with
members in the congressional district;
The language used: the petition should be printed in English and
translated in the local language;
Signature stations to be provided for;
Provisions pertaining to the need and manner of posting, that is,
after the signatures shall have been verified by the Commission,
the verified signatures shall be posted for at least thirty days in
the respective municipal and city halls where the signatures were
obtained;
Provisions pertaining to protests allowed any protest as to the
authenticity of the signatures to be filed with the COMELEC and
decided within sixty (60) days from the filing of said protest.
None of the above necessary details is provided by R.A. No. 6735, thus,
demonstrating its incompleteness and inadequacy.
V
Petitioners are not Proper Parties to
File the Petition for Initiative
VI
The Petition for Initiative Filed with the COMELEC Does not Comply with
Section 2, Article XVII of the Constitution and R.A. No. 6735
I shall discuss the above issues together since they are interrelated and
inseparable. The determination of whether petitioners are proper parties
to file the petition for initiative in behalf of the alleged 6.3 million voters
will require an examination of whether they have complied with the
provisions of Section 2, Article XVII of the Constitution.
To reiterate, Section 2, Article XVII of the Constitution provides:
Section 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters
therein. No amendment under this section shall be authorized
within five years following the ratification of this Constitution nor
oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise
of this right. (Underscoring supplied)
258
The mandate of the above constitutional provisions is definite and
categorical. For a people's initiative to prosper, the following requisites
must be present:
1. It is "the people" themselves who must "directly propose"
"amendments" to the Constitution;
2. The proposed amendments must be contained in "a petition of
at least twelve per centum of the total number of registered
voters;" and
3. The required minimum of 12% of the total number of registered
voters "must be represented by at least three per centum of the
registered voters" of "every legislative district."
In this case, however, the above requisites are not present.
The petition for initiative was filed with the COMELEC by petitioners
Lambino and Aumentado, two registered voters. As shown in the
"Verification/Certification with Affidavit of Non-Forum Shopping"
contained in their petition, they alleged under oath that they have caused
the preparation of the petition in their personal capacity as registered
voters "and as representatives" of the supposed 6.3 million registered
voters. This goes to show that the questioned petition was not initiated
directly by the 6.3 million people who allegedly comprised at least 12% of
the total number of registered voters, as required by Section 2.
Moreover, nowhere in the petition itself could be found the signatures
of the 6.3 million registered voters. Only the signatures of petitioners
Lambino and Aumentado were affixed therein "as representatives" of
those 6.3 million people. Certainly, that is not the petition for people's
initiative contemplated by the Constitution.
Petitioners Lambino and Aumentado have no authority whatsoever to
file the petition "as representatives" of the alleged 6.3 million registered
voters. Such act of representation is constitutionally proscribed. To
repeat, Section 2 strictly requires that amendments to the Constitution
shall be "directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered
voters." Obviously, the phrase "directly proposed by the people"
excludes any person acting as representative or agent of the 12% of the
total number of registered voters. The Constitution has bestowed upon
the people the right to directly propose amendments to the Constitution.
Such right cannot be usurped by anyone under the guise of being the
people's representative. Simply put, Section 2 does not recognize acts of
representation. For it is only "the people" (comprising the minimum of
12% of the total number of registered voters, of which every legislative
district must be represented by at least three per centum of the
registered voters therein) who are the proper parties to initiate a petition
proposing amendments to the Constitution. Verily, the petition filed with
the COMELEC by herein petitioners Lambino and Aumentado is not a
people's initiative. Necessarily, it must fail.
Cororarilly, the plea that this Court should "hear" and "heed" "the
people's voice" is baseless and misleading. There is no people's voice to
be heard and heeded as this petition for initiative is not truly theirs, but
only of petitioners Lambino and Aumentado and their allies.
VII
The issues at bar are not political questions.
Lambino and Aumentado, petitioners in G.R. No. 174153, vehemently
argue that: (1) "the validity of the exercise of the right of the sovereign
people to amend the Constitution and their will, as expressed by the fact
that over six million registered voters indicated their support of the
Petition for initiative is a purely political question;" and (2) "[t]he power
to propose amendments to the Constitution is a right explicitly bestowed
upon the sovereign people. Hence, the determination by the people to
exercise their right to propose amendments under the system of initiative
is a sovereign act and falls squarely within the ambit of a political
question."
The "political question doctrine" was first enunciated by the US Supreme
Court in Luther v. Borden.37 Faced with the difficult question of whether
the Supreme Court was the appropriate institution to define the
substantive content of republicanism, the US Supreme Court, speaking
259
thru Mr. Justice Roger B. Taney, concluded that "the sovereignty in every
State resides in the people, as to how and whether they exercised it,
was under the circumstances of the case, a political question to be
settled by the political power." In other words, the responsibility of
settling certain constitutional questions was left to the legislative and
executive branches of the government.
The Luther case arose from the so-called "Dorr Rebellion" in the State of
Rhode Island. Due to increased migration brought about by the Industrial
Revolution, the urban population of Rhode Island increased. However,
under the 1663 Royal Charter which served as the State Constitution,
voting rights were largely limited to residents of the rural districts. This
severe mal-apportionment of suffrage rights led to the "Dorr Rebellion."
Despairing of obtaining remedies for their disenfranchisement from the
state government, suffrage reformers invoked their rights under the
American Declaration of Independence to "alter or abolish" the
government and to institute a new one. The reformers proceeded to call
for and hold an extralegal constitutional convention, drafted a new State
Constitution, submitted the document for popular ratification, and held
elections under it. The State government, however, refused to cede
power, leading to an anomalous situation in that for a few months in
1842, there were two opposing state governments contending for
legitimacy and possession of state of offices.
The Rhode Island militia, under the authority of martial law, entered and
searched the house of Martin Luther, a Dorr supporter. He brought suit
against Luther Borden, a militiaman. Before the US Supreme Court,
Luther's counsel argued that since the State's archaic Constitution
prevented a fair and peaceful address of grievances through democratic
processes, the people of Rhode Island had instead chosen to exercise
their inherent right in popular sovereignty of replacing what they saw as
an oppressive government. The US Supreme Court deemed the
controversy as non-justiciable and inappropriate for judicial resolution.
In Colgrove v. Green,38 Mr. Justice Felix Frankfurter, coined the phrase
"political thicket" to describe situations where Federal courts should not
intervene in political questions which they have neither the competence
nor the commission to decide. In Colgrove, the US Supreme Court, with a
narrow 4-3 vote branded the apportionment of legislative districts in
Illinois "as a political question and that the invalidation of the districts
might, in requiring statewide elections, create an evil greater than that
sought to be remedied."
While this Court has adopted the use of Frankfurter's "political thicket,"
nonetheless, it has sought to come up with a definition of the term
"political question." Thus, in Vera v. Avelino,39 this Court ruled that
properly, political questions are "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity
or in regard to which full discretionary authority has been delegated to
the legislative or executive branch of the government." In Taada and
Macapagal v. Cuenco,40 the Court held that the term political question
connotes, in legal parlance, what it means in ordinary parlance, namely, a
question of policy. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.
In Aquino v. Enrile,41 this Court adopted the following guidelines laid down
in Baker v. Carr42 in determining whether a question before it is political,
rather than judicial in nature, to wit:
1) there is a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or
2) there is a lack of judicially discoverable and manageable
standards for resolving it; or
3) there is the sheer impossibility of deciding the matter without
an initial policy determination of a kind clearly for non-judicial
discretion; or
4) there is the sheer impossibility of the Court's undertaking an
independent resolution without expressing lack of respect due
the coordinate branches of government; or
5) there is an unusual need for unquestioning adherence to a
political decision already made; or
260
 6) there exists the potentiality of embarrassment arising from
multifarious pronouncements by various departments on one
question.
None of the foregoing standards is present in the issues raised before this
Court. Accordingly, the issues are justiciable. What is at stake here is the
legality and not the wisdom of the act complained of.
Moreover, even assuming arguendo that the issues raised before this
Court are political in nature, it is not precluded from resolving them under
its expanded jurisdiction conferred upon it by Section 1, Article VIII of the
Constitution, following Daza v. Singson.43 As pointed out in Marcos v.
Manglapus,44 the present Constitution limits resort to the political
question doctrine and broadens the scope of judicial power which the
Court, under previous charters, would have normally and ordinarily left to
the political departments to decide.
CONCLUSION
In fine, considering the political scenario in our country today, it is my
view that the so-called people's initiative to amend our Constitution from
bicameral-presidential to unicameral-parliamentary is actually not an
initiative of the people, but an initiative of some of our politicians. It has
not been shown by petitioners, during the oral arguments in this case,
that the 6.3 million registered voters who affixed their signatures
understood what they signed. In fact, petitioners admitted that the
Constitutional provisions sought to be amended and the proposed
amendments were not explained to all those registered voters. Indeed,
there will be no means of knowing, to the point of judicial certainty,
whether they really understood what petitioners and their group asked
them to sign.
Let us not repeat the mistake committed by this Court in Javellana v. The
Executive Secretary.45 The Court then ruled that "This being the vote of
the majority, there is no further judicial obstacle to the new Constitution
being considered in force and effect," although it had notice that the
Constitution proposed by the 1971 Constitutional Convention was not
validly ratified by the people in accordance with the 1935 Constitution.
The Court concluded, among others, that the viva voce voting in the
Citizens' Assemblies "was and is null and void ab initio." That was during
martial law when perhaps majority of the justices were scared of the
dictator. Luckily at present, we are not under a martial law regime. There
is, therefore, no reason why this Court should allow itself to be used as a
legitimizing authority by the so-called people's initiative for those who
want to perpetuate themselves in power.
At this point, I can say without fear that there is nothing wrong with our
present government structure. Consequent1y, we must not change it.
America has a presidential type of government. Yet, it thrives ideally and
has become a super power. It is then safe to conclude that what we
should change are some of the people running the government, NOT the
SYSTEM.
According to petitioners, the proposed amendment would effect a more
efficient, more economical and more responsive government.
Is there hope that a new breed of politicians, more qualified and capable,
may be elected as members and leaders of the unicameral-parliament? Or
will the present members of the Lower House continue to hold their
respective positions with limitless terms?
Will the new government be more responsive to the needs of the poor
and the marginalized? Will it be able to provide homes for the homeless,
food for the hungry, jobs for the jobless and protection for the weak?
This is a defining moment in our history. The issue posed before us is
crucial with transcendental significance. And history will judge us on how
we resolve this issue shall we allow the revision of our Constitution, of
which we are duty bound to guard and revere, on the basis of a doubtful
people's initiative?
Amending the Constitution involving a change of government system or
structure is a herculean task affecting the entire Filipino people and the
future generations. Let us, therefore, entrust this duty to more
261
knowledgeable people elected as members of a Constitutional
Convention.
Yes, the voice of the people is the voice of God. But under the
circumstances in this case, the voice of God is not audible.
WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to
GRANT the petition in G.R. No. 174299.
CALLEJO, SR., J.:
I am convinced beyond cavil that the respondent Commission on
Elections (COMELEC) did not commit an abuse of its discretion in
dismissing the amended petition before it. The proposals of petitioners
incorporated in said amended petition are for the revision of the 1987
Constitution. Further, the amended petition before the respondent
COMELEC is insufficient in substance.

The Antecedents
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
On August 25, 2006, petitioners Raul L. Lambino and Erico B. Aumentado
filed with the COMELEC a petition entitled "IN THE MATTER OF
____________________ PROPOSING AMENDMENTS TO THE 1987 CONSTITUTION THROUGH A
PEOPLE'S INITIATIVE: A SHIFT FROM A BICAMERAL PRESIDENTIAL TO A
EN BANC UNICAMERAL PARLIAMENTARY GOVERNMENT BY AMENDING ARTICLES
VI AND VII; AND PROVIDING TRANSITORY PROVISIONS FOR THE
G.R. No. 174153 ORDERLY SHIFT FROM THE PRESIDENTIAL TO THE PARLIAMENTARY
SYSTEM." The case was docketed as EM (LD)-06-01. On August 30, 2006,
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 petitioners filed an amended petition. For brevity, it is referred to as the
REGISTERED VOTERS, petitioners, petition for initiative.
vs.
THE COMMISSION ON ELECTIONS, respondent. Petitioners alleged therein, inter alia, that they filed their petition in their
own behalf and together with those who have affixed their signatures to
G.R. No. 174299 the signature sheets appended thereto who are Filipino citizens,
residents and registered voters of the Philippines, and they constitute at
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. least twelve percent (12%) of all the registered voters in the country,
SAGUISAG, petitioners, wherein each legislative district is represented by at least three percent
vs. (3%) of all the registered voters therein.
THE COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN
S. ABALOS, SR., and Commissioners RESURRECCION Z. BORRA, Petitioners further alleged therein that the filing of the petition for
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. initiative is based on their constitutional right to propose amendments to
SARMIENTO, and JOHN DOE and PETER DOE, respondents. the 1987 Constitution by way of people's initiative, as recognized in
Section 2, Article XVII thereof, which provides:
x ---------------------------------------------------------------------------------------- x
SEC. 2. Amendments to this Constitution may likewise be directly
SEPARATE CONCURRING OPINION proposed by the people through initiative upon a petition of at

262
 least twelve per centum of the total number of registered voters,
of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment
under this section shall be authorized within five years following
the ratification of this Constitution nor oftener than once every
five years thereafter.
The Congress shall provide for the implementation of the exercise
of this right."
According to petitioners, while the above provision states that "(T)he
Congress shall provide for the implementation of the exercise of this
right," the provisions of Section 5(b) and (c), along with Section 7 of
Republic Act (RA) 6735,1 are sufficient enabling details for the people's
exercise of the power. The said sections of RA 6735 state:
Sec. 5. Requirements. (a) To exercise the power x x x
(b) A petition for an initiative on the 1987 Constitution must have
at least twelve per centum (12%) of the total number of registered
voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered
voters therein. Initiative on the Constitution may be exercised
only after five (5) years from the ratification of the 1987
Constitution and only once every five (5) years thereafter.
(c) The petition shall state the following:
c.1. contents or text of the proposed law sought to be
enacted, approved or rejected, amended or repealed, as
the case may be;
c.2. the proposition;
c.3. the reason or reasons therefor;
c.4. that it is not one of the exceptions provided herein;
c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary in not more than one
hundred (100) words which shall be legibly written or
printed at the top of every page of the petition.
xxxx
Sec. 7. Verification of Signatures. The Election Registrar shall
verify the signatures on the basis of the registry list of voters,
voters' affidavits and voters identification cards used in the
immediately preceding election.
They also alleged that the COMELEC has the authority, mandate and
obligation to give due course to the petition for initiative, in compliance
with the constitutional directive for the COMELEC to "enforce and
administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall."2
Petitioners incorporated in their petition for initiative the changes they
proposed to be incorporated in the 1987 Constitution and prayed that the
COMELEC issue an order:
1. Finding the Petition to be sufficient pursuant to Section 4,
Article XVII of the 1987 Constitution;
2. Directing the publication of the Petition in Filipino and English
at least twice in newspapers of general and local circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later
than ninety days after the Certification by this Honorable
Commission of the sufficiency of this Petition, to allow the Filipino
people to express their sovereign will on the proposition.
Petitioners pray for such other reliefs deemed just and equitable
in the premises.
263
The Ruling of the respondent COMELEC
On August 31, 2006, the COMELEC promulgated the assailed Resolution
denying due course and dismissing the petition for initiative. The
COMELEC ruled that:
We agree with the petitioners that this Commission has the
solemn Constitutional duty to enforce and administer all laws and
regulations relative to the conduct of, as in this case, initiative.
This mandate, however, should be read in relation to the other
provisions of the Constitution particularly on initiative.
Section 2, Article XVII of the 1987 Constitution provides:
"Sec. 2. Amendments to this Constitution may, likewise,
be directly proposed by the people through initiative,
upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative
district must be represented by at least three per centum
of the registered voters therein. x x x.
The Congress shall provide for the implementation of the
exercise of this right."
The aforequoted provision of the Constitution being a non-self-
executory provision needed an enabling law for its
implementation. Thus, in order to breathe life into the
constitutional right of the people under a system of initiative to
directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolution, Congress enacted
RA 6735.
However, the Supreme Court, in the landmark case of Santiago v.
Commission on Elections struck down the said law for being
incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution
is concerned
The Supreme Court, likewise, declared that this Commission
should be permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted
to provide for the implementation of the system.
Thus, even if the signatures in the instant Petition appear to meet
the required minimum per centum of the total number of
registered voters, of which every legislative district is represented
by at least three per centum of the registered voters therein, still
the Petition cannot be given due course since the Supreme Court
categorically declared RA 6735 as inadequate to cover the system
of initiative on amendments to the Constitution.
This Commission is not unmindful of the transcendental
importance of the right of the people under a system of initiative.
However, neither can we turn a blind eye to the pronouncement
of the High Court that in the absence of a valid enabling law, this
right of the people remains nothing but an "empty right," and
that this Commission is permanently enjoined from entertaining
or taking cognizance of any petition for initiative on amendments
to the Constitution. (Citations omitted.)
Aggrieved, petitioners elevated the case to this Court on a petition for
certiorari and mandamus under Rule 65 of the Rules of Court.
The Petitioners' Case
In support of their petition, petitioners alleged, inter alia, that:
I.
THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION IN REFUSING TO TAKE
264
COGNIZANCE OF, AND TO GIVE DUE COURSE TO THE PETITION
FOR INITIATIVE, BECAUSE THE CITED SANTIAGO RULING OF 19
MARCH 1997 CANNOT BE CONSIDERED THE MAJORITY OPINION
OF THE SUPREME COURT EN BANC, CONSIDERING THAT UPON
ITS RECONSIDERATION AND FINAL VOTING ON 10 JUNE 1997, NO
MAJORITY VOTE WAS SECURED TO DECLARE REPUBLIC ACT NO.
6735 AS INADEQUATE, INCOMPLETE AND INSUFFICIENT IN
STANDARD.
II.
THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735, REPUBLIC
ACT NO. 8189 AND EXISTING APPROPRIATION OF THE COMELEC
PROVIDE FOR SUFFICIENT DETAILS AND AUTHORITY FOR THE
EXERCISE OF PEOPLE'S INITIATIVE, THUS, EXISTING LAWS TAKEN
TOGETHER ARE ADEQUATE AND COMPLETE.
III.
THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION IN REFUSING TO TAKE
COGNIZANCE OF, AND IN REFUSING TO GIVE DUE COURSE TO
THE PETITION FOR INITIATIVE, THEREBY VIOLATING AN EXPRESS
CONSTITUTIONAL MANDATE AND DISREGARDING AND
CONTRAVENING THE WILL OF THE PEOPLE.
A.
THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT
APPLICABLE TO THE INSTANT PETITION FOR INITIATIVE
FILED BY THE PETITIONERS.
1.
THE FRAMERS OF THE CONSTITUTION INTENDED
TO GIVE THE PEOPLE THE POWER TO PROPOSE
AMENDMENTS AND THE PEOPLE THEMSELVES
ARE NOW GIVING VIBRANT LIFE TO THIS
CONSTITUTIONAL PROVISION
2.
PRIOR TO THE QUESTIONED SANTIAGO RULING
OF 19 MARCH 1997, THE RIGHT OF THE PEOPLE TO
EXERCISE THE SOVEREIGN POWER OF INITIATIVE
AND RECALL HAS BEEN INVARIABLY UPHELD
3.
THE EXERCISE OF THE INITIATIVE TO PROPOSE
AMENDMENTS IS A POLITICAL QUESTION WHICH
SHALL BE DETERMINED SOLELY BY THE
SOVEREIGN PEOPLE.
4.
BY SIGNING THE SIGNATURE SHEETS ATTACHED
TO THE PETITION FOR INITIATIVE DULY VERIFIED
BY THE ELECTION OFFICERS, THE PEOPLE HAVE
CHOSEN TO PERFORM THIS SACRED EXERCISE OF
THEIR SOVEREIGN POWER.
B.
THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT
APPLICABLE TO THE INSTANT PETITION FOR INITIATIVE
FILED BY THE PETITIONERS
C.
THE PERMANENT INJUNCTION ISSUED IN SANTIAGO V.
COMELEC ONLY APPLIES TO THE DELFIN PETITION.
1.
265
 IT IS THE DISPOSITIVE PORTION OF THE DECISION
AND NOT OTHER STATEMENTS IN THE BODY OF
THE DECISION THAT GOVERNS THE RIGHTS IN
CONTROVERSY.
IV.
THE HONORABLE PUBLIC RESPONDENT FAILED OR NEGLECTED
TO ACT OR PERFORM A DUTY MANDATED BY LAW.
A.
THE MINISTERIAL DUTY OF THE COMELEC IS TO SET THE
INITIATIVE FOR PLEBISCITE.3
Petitioners Failed to Allege and Demonstrate All the Essential
Facts To Establish the Right to a Writ of Certiorari
Section 1, Rule 65 of the Rules of Court reads:
Sec. 1. Petition for certiorari. When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or
in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is
no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the
judgment, order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent thereto, and a
sworn certification of non-forum shopping as provided in the
third paragraph of Section 3, Rule 46.
A writ for certiorari may issue only when the following requirements are
set out in the petition and established:
(1) the writ is directed against a tribunal, a board or any officer
exercising judicial or quasi-judicial functions;
(2) such tribunal, board or officer has acted without or in excess
of jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction; and
(3) there is no appeal or any plain, speedy and adequate remedy
in the ordinary course of law. x x x4
The Court has invariably defined "grave abuse of discretion," thus:
By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction, and it must be shown that the discretion was
exercised arbitrarily or despotically. For certiorari to lie, there
must be a capricious, arbitrary and whimsical exercise of power,
the very antithesis of the judicial prerogative in accordance with
centuries of both civil law and common law traditions.5
There is thus grave abuse of discretion on the part of the COMELEC when
it acts in a capricious, whimsical, arbitrary or despotic manner in the
exercise of its judgment amounting to lack of jurisdiction. Mere abuse of
discretion is not enough.6 The only question involved is jurisdiction, either
the lack or excess thereof, and abuse of discretion warrants the issuance
of the extraordinary remedy of certiorari only when the same is grave, as
when the power is exercised in an arbitrary or despotic manner by reason
of passion, prejudice or personal hostility. A writ of certiorari is a remedy
designed for the correction of errors of jurisdiction and not errors of
judgment.7 An error of judgment is one in which the court may commit in
the exercise of its jurisdiction, which error is reversible only by an appeal.8
In the present case, it appears from the assailed Resolution of the
COMELEC that it denied the petition for initiative solely in obedience to
266
the mandate of this Court in Santiago v. Commission on Elections.9 In said
case, the Court En Banc permanently enjoined the COMELEC from
entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been
validly enacted to provide for the implementation of the system. When
the COMELEC denied the petition for initiative, there was as yet no valid
law enacted by Congress to provide for the implementation of the
system.
It is a travesty for the Court to declare the act of the COMELEC in denying
due course to the petition for initiative as "capricious, despotic,
oppressive or whimsical exercise of judgment as is equivalent to lack of
jurisdiction." In fact, in so doing, the COMELEC merely followed or
applied, as it ought to do, the Court's ruling in Santiago to the effect that
Section 2, Article XVII of the Constitution on the system of initiative is a
non self-executory provision and requires an enabling law for its
implementation. In relation thereto, RA 6735 was found by the Court to
be "incomplete, inadequate, or wanting in essential terms and
conditions" to implement the constitutional provision on initiative.
Consequently, the COMELEC was "permanently enjoined from
entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system." The decision of
the Court En Banc interpreting RA 6735 forms part of the legal system of
the Philippines.10 And no doctrine or principle laid down by the Court En
Banc may be modified or reversed except by the Court En Banc,11 certainly
not by the COMELEC. Until the Court En Banc modifies or reverses its
decision, the COMELEC is bound to follow the same.12 As succinctly held in
Fulkerson v. Thompson:13
Whatever was before the Court, and is disposed of, is considered
as finally settled. The inferior court is bound by the judgment or
decree as the law of the case, and must carry it into execution
according to the mandate. The inferior court cannot vary it, or
judicially examine it for any other purpose than execution. It can
give no other or further relief as to any matter decided by the
Supreme Court even where there is error apparent; or in any
manner intermeddle with it further than to execute the mandate
and settle such matters as have been remanded, not adjudicated
by the Supreme Court.
The principles above stated are, we think, conclusively
established by the authority of adjudged cases. And any further
departure from them would inevitably mar the harmony of the
whole judiciary system, bring its parts into conflict, and produce
therein disorganization, disorder, and incalculable mischief and
confusion. Besides, any rule allowing the inferior courts to
disregard the adjudications of the Supreme Court, or to refuse or
omit to carry them into execution would be repugnant to the
principles established by the constitution, and therefore void.14
At this point, it is well to recall the factual context of Santiago as well as
the pronouncement made by the Court therein. Like petitioners in the
instant case, in Santiago, Atty. Jesus Delfin, the People's Initiative for
Reforms, Modernization and Action (PIRMA), et al., invoked Section 2,
Article XVII of the Constitution as they filed with the COMELEC a "Petition
to Amend the Constitution, to Lift Term Limits of Elective Officials, By
People's Initiative" (the Delfin petition). They asked the COMELEC to
issue an order fixing the time and date for signature gathering all over the
country; causing the necessary publications of said order and their
petition in newspapers of general and local circulation and instructing
municipal election registrars in all regions all over the country and to
assist petitioners in establishing signing stations. Acting thereon, the
COMELEC issued the order prayed for.
Senator Miriam Santiago, et al. forthwith filed with this Court a petition
for prohibition to enjoin the COMELEC from implementing its order. The
Court, speaking through Justice Hilario G. Davide, Jr. (later Chief Justice),
granted the petition as it declared:
1. RA 6735 "incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is
concerned";
2. COMELEC Resolution No. 230015 invalid insofar as it prescribed rules
and regulations on the conduct of initiative on amendments to the
267
Constitution because the COMELEC is without authority to promulgate
the rules and regulations to implement the exercise of the right of the
people to directly propose amendments to the Constitution through the
system of initiative; and
3. The Delfin petition insufficient as it did not contain the required
number of signatures of registered voters.
The Court concluded in Santiago that "the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of
the system." The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered:
a) GRANTING the instant petition;
b) DECLARING RA 6735 inadequate to cover the system of
initiative on amendments to the Constitution, and to have failed
to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the
Commission on Elections prescribing rules and regulations on the
conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS
the Delfin petition (UND-96-037).
The Temporary Restraining Order issued on December 18, 1996 is
made permanent as against the Commission on Elections, but is
LIFTED as against private respondents.16
The Court reiterated its ruling in Santiago in another petition which was
filed with the Court by PIRMA and the spouses Alberto and Carmen
Pedrosa (who were parties in Santiago) docketed as PIRMA v. Commission
on Elections.17 The said petitioners, undaunted by Santiago and claiming to
have gathered 5,793,213 signatures, filed a petition with the COMELEC
praying, inter alia, that COMELEC officers be ordered to verify all the
signatures collected in behalf of the petition and, after due hearing, that
it (COMELEC) declare the petition sufficient for the purpose of scheduling
a plebiscite to amend the Constitution. Like the Delfin petition in
Santiago, the PIRMA petition proposed to submit to the people in a
plebiscite the amendment to the Constitution on the lifting of the term
limits of elected officials.
The opinion of the minority that there was no doctrine enunciated by the
Court in PIRMA has no basis. The COMELEC, in its Resolution dated July 8,
1997, dismissed the PIRMA petition citing the permanent restraining
order issued against it by the Court in Santiago. PIRMA and the spouses
Pedrosa forthwith elevated the matter to the Court alleging grave abuse
of discretion on the part of the COMELEC in refusing to exercise
jurisdiction over, and thereby dismissing, their petition for initiative to
amend the Constitution.
The Court dismissed outright, by a unanimous vote, the petition filed by
PIRMA and the spouses Albert Pedrosa. The Court declared that the
COMELEC merely complied with the dispositions in the decision of the
Court in Santiago and, hence, cannot be held to have committed a grave
abuse of its discretion in dismissing the petition before it:
The Court ruled, first, by a unanimous vote, that no grave abuse
of discretion could be attributed to the public respondent
COMELEC in dismissing the petition filed by PIRMA therein, it
appearing that it only complied with the dispositions in the
Decision of this Court in G.R. No. 127325, promulgated on March
19, 1997, and its Resolution of June 10, 1997.
The Court next considered the question of whether there was
need to resolve the second issue posed by the petitioners,
namely, that the Court re-examine its ruling as regards R.A. 6735.
On this issue, the Chief Justice and six (6) other members of the
Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan
and Torres, JJ., voted that there was no need to take it up. Vitug,
J., agreed that there was no need for re-examination of said
268
 second issue since the case a bar is not the proper vehicle for that
purpose. Five (5) other members of the Court, namely, Melo,
Puno, Francisco, Hermosisima and Panganiban, JJ., opined that
there was need for such a re-examination. x x x
WHEREFORE, the petition is DISMISSED.18 (Underscoring
supplied.)
In the present case, the Office of the Solicitor General (OSG) takes the
side of petitioners and argues that the COMELEC should not have applied
the ruling in Santiago to the petition for initiative because the permanent
injunction therein referred only to the Delfin petition. The OSG buttresses
this argument by pointing out that the Temporary Restraining Order
dated December 18, 1996 that was made permanent in the dispositive
portion referred only to the Delfin petition.
The OSG's attempt to isolate the dispositive portion from the body of the
Court's decision in Santiago is futile. It bears stressing that the dispositive
portion must not be read separately but in connection with the other
portions of the decision of which it forms a part. To get to the true intent
and meaning of a decision, no specific portion thereof should be resorted
to but the same must be considered in its entirety. Hence, a resolution or
ruling may and does appear in other parts of the decision and not merely
in the fallo thereof.19
The pronouncement in the body of the decision in Santiago permanently
enjoining the COMELEC "from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of
the system" is thus as much a part of the Court's decision as its
dispositive portion. The ruling of this Court is of the nature of an in rem
judgment barring any and all Filipinos from filing a petition for initiative
on amendments to the Constitution until a sufficient law shall have been
validly enacted. Clearly, the COMELEC, in denying due course to the
present petition for initiative on amendments to the Constitution
conformably with the Court's ruling in Santiago did not commit grave
abuse of discretion. On the contrary, its actuation is in keeping with the
salutary principle of hierarchy of courts. For the Court to find the
COMELEC to have abused its discretion when it dismissed the amended
petition based on the ruling of this Court in Santiago would be sheer
judicial apostasy.
As eloquently put by Justice J.B.L. Reyes, "there is only one Supreme
Court from whose decisions all other courts should take their bearings."20
This truism applies with equal force to the COMELEC as a quasi-judicial
body for, after all, judicial decisions applying or interpreting laws or the
Constitution "assume the same authority as the statute itself and, until
authoritatively abandoned, necessarily become, to the extent that they
are applicable, the criteria which must control the actuations not only of
those called upon to abide thereby but also of those duty bound to
enforce obedience thereto."21
Petitioners Cannot Ascribe
Grave Abuse of Discretion on
the COMELEC Based on the
Minority Opinion in Santiago
It is elementary that the opinion of the majority of the members of the
Court, not the opinion of the minority, prevails. As a corollary, the
decision of the majority cannot be modified or reversed by the minority
of the members of the Court.
However, to eschew the binding effect of Santiago, petitioners argue,
albeit unconvincingly, that the Court's declaration therein on the
inadequacy, incompleteness and insufficiency of RA 6735 to implement
the system of initiative to propose constitutional amendments did not
constitute the majority opinion. This contention is utterly baseless.
Santiago was concurred in, without any reservation, by eight Justices,22 or
the majority of the members of the Court, who actually took part in the
deliberations thereon. On the other hand, five Justices,23 while voting for
the dismissal of the Delfin petition on the ground of insufficiency,
dissented from the majority opinion as they maintained the view that RA
6735 was sufficient to implement the system of initiative.
269
Given that a clear majority of the members of the Court, eight Justices,
concurred in the decision in Santiago, the pronouncement therein that RA
6735 is "incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is
concerned" constitutes a definitive ruling on the matter.
In the Resolution dated June 10, 1997, the motions for reconsideration of
the Santiago decision were denied with finality as only six Justices, or less
than the majority, voted to grant the same. The Resolution expressly
stated that the motion for reconsideration failed "to persuade the
requisite majority of the Court to modify or reverse the Decision of 19
March 1977."24 In fine, the pronouncement in Santiago as embodied in the
Decision of March 19, 1997 remains the definitive ruling on the matter.
It bears stressing that in PIRMA, petitioners prayed for the Court to
resolve the issue posed by them and to re-examine its ruling as regards
RA 6735. By a vote of seven members of the Court, including Justice Justo
P. Torres, Jr. and Justice Jose C. Vitug, the Court voted that there was no
need to resolve the issue. Five members of the Court opined that there
was a need for the re-examination of said ruling. Thus, the
pronouncement of the Court in Santiago remains the law of the case and
binding on petitioners.
If, as now claimed by the minorty, there was no doctrine enunciated by
the Court in Santiago, the Court should have resolved to set aside its
original resolution dismissing the petition and to grant the motion for
reconsideration and the petition. But the Court did not. The Court
positively and unequivocally declared that the COMELEC merely followed
the ruling of the Court in Santiago in dismissing the petition before it. No
less than Senior Justice Reynato S. Puno concurred with the resolution of
the Court. It behooved Justice Puno to dissent from the ruling of the
Court on the motion for reconsideration of petitioners precisely on the
ground that there was no doctrine enunciated by the Court in Santiago.
He did not. Neither did Chief Justice Artemio V. Panganiban, who was a
member of the Court.
That RA 6735 has failed to validly implement the people's right to directly
propose constitutional amendments through the system of initiative had
already been conclusively settled in Santiago as well as in PIRMA. Heeding
these decisions, several lawmakers, including no less than Solicitor
General Antonio Eduardo Nachura when he was then a member of the
House of Representatives,25 have filed separate bills to implement the
system of initiative under Section 2, Article XVII of the Constitution.
In the present Thirteenth (13th) Congress, at least seven (7) bills are
pending. In the Senate, the three (3) pending bills are: Senate Bill No. 119
entitled An Act Providing for People's Initiative to Amend the
Constitution introduced by Senator Luisa "Loi" P. Ejercito Estrada; Senate
Bill No. 2189 entitled An Act Providing for People's Initiative to Amend the
Constitution introduced by Senator Miriam Defensor Santiago; and
Senate Bill No. 2247 entitled An Act Providing for a System of People's
Initiative to Propose Amendments to the Constitution introduced by
Senator Richard Gordon.
In the House of Representatives, there are at least four (4) pending bills:
House Bill No. 05281 filed by Representative Carmen Cari, House Bill No.
05017 filed by Representative Imee Marcos, House Bill No. 05025 filed by
Representative Roberto Cajes, and House Bill No. 05026 filed by
Representative Edgardo Chatto. These House bills are similarly entitled
An Act Providing for People's Initiative to Amend the Constitution.
The respective explanatory notes of the said Senate and House bills
uniformly recognize that there is, to date, no law to govern the process by
which constitutional amendments are introduced by the people directly
through the system of initiative. Ten (10) years after Santiago and absent
the occurrence of any compelling supervening event, i.e., passage of a
law to implement the system of initiative under Section 2, Article XVII of
the Constitution, that would warrant the re-examination of the ruling
therein, it behooves the Court to apply to the present case the salutary
and well-recognized doctrine of stare decisis. As earlier shown, Congress
and other government agencies have, in fact, abided by Santiago. The
Court can do no less with respect to its own ruling.
Contrary to the stance taken by petitioners, the validity or
constitutionality of a law cannot be made to depend on the individual
opinions of the members who compose it the Supreme Court, as an
270
institution, has already determined RA 6735 to be "incomplete, accordance with the number of their respective inhabitants, with
inadequate, or wanting in essential terms and conditions insofar as at least three hundred thousand inhabitants per district, and on
initiative on amendments to the Constitution is concerned" and therefore the basis of a uniform and progressive ratio. Each district shall
the same remains to be so regardless of any change in the Court's comprise, as far as practicable, contiguous, compact and adjacent
composition.26 Indeed, it is vital that there be stability in the courts in territory, and each province must have at least one member.
adhering to decisions deliberately made after ample consideration.
Parties should not be encouraged to seek re-examination of determined "(2) Each Member of Parliament shall be a natural-born citizen of
principles and speculate on fluctuation of the law with every change in the the Philippines, at least twenty-five years old on the day of the
expounders of it.27 election, a resident of his district for at least one year prior
thereto, and shall be elected by the qualified voters of his district
Proposals to Revise the Constitution, for a term of five years without limitation as to the number
As in the Case of the Petitioners' thereof, except those under the party-list system which shall be
Proposal to Change the Form of provided for by law and whose number shall be equal to twenty
Government, Cannot be Effected per centum of the total membership coming from the
Through the System of Initiative, parliamentary districts."
Which by Express Provision of
Section 2, Article XVII of the B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby
Constitution, is Limited to Amendments amended to read, as follows:

Even granting arguendo the Court, in the present case, abandons its
pronouncement in Santiago and declares RA 6735, taken together with
other extant laws, sufficient to implement the system of initiative, still,
the amended petition for initiative cannot prosper. Despite the
denomination of their petition, the proposals of petitioners to change the
form of government from the present bicameral-presidential to a
unicameral-parliamentary system of government are actually for the
revision of the Constitution.
Petitioners propose to "amend" Articles VI and VII of the Constitution in
this manner:
"Section 1. There shall be a President who shall be the Head of
State. The executive power shall be exercised by a Prime Minister,
with the assistance of the Cabinet. The Prime Minister shall be
elected by a majority of all the Members of Parliament from
among themselves. He shall be responsible to the Parliament for
the program of government.
C. For the purpose of insuring an orderly transition from the bicameral-
Presidential to a unicameral-Parliamentary form of government, there
shall be a new Article XVIII, entitled "Transitory Provisions," which shall
read as follows:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as
follows:
"Section 1. (1) The legislative and executive powers shall be
vested in a unicameral Parliament which shall be composed of as
many members as may be provided by law, to be apportioned
among the provinces, representative districts, and cities in
Section 1. (1) The incumbent President and Vice President shall
serve until the expiration of their term at noon on the thirtieth
day of June 2010 and shall continue to exercise their powers
under the 1987 Constitution unless impeached by a vote of two
thirds of all the members of the interim parliament.,
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(2) In case of death, permanent disability, resignation or removal
from office of the incumbent President, the incumbent Vice
President shall succeed as President. In case of death, permanent
disability, resignation or removal from office of both the
incumbent President and Vice President, the interim Prime
Minister shall assume all the powers and responsibilities of Prime
Minister under Article VII as amended.
Section 2. "Upon the expiration of the term of the incumbent
President and Vice President, with the exception of Sections 1, 2,
3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall
hereby be amended and Sections 18 and 24 which shall be
deleted, all other Sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatim up to 26, unless
they are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to conform
with a unicameral parliamentary form of government; provided,
however, that any and all references therein to "Congress,"
"Senate," "House of Representatives" and "House of Congress,"
"Senator[s] or "Member[s] of the House of Representatives" and
"House of Congress" shall be changed to read "Parliament"; that
any and all references therein to "Member[s] of the House of
Representatives" shall be changed to read as "Member[s] of
Parliament" and any and all references to the "President" and or
"Acting President" shall be changed to read "Prime Minister."
Section 3. "Upon the expiration of the term of the incumbent
President and Vice President, with the exception of Sections 1, 2, 3
and 4 of Article VII of the 1987 Constitution which are hereby
amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby
deleted, all other Sections of Article VII shall be retained and
renumbered sequentially as Section 2, ad seriatim up to 14, unless
they shall be inconsistent with Section 1 hereof, in which case
they shall be deemed amended so as to conform to a unicameral
Parliamentary System of government; provided, however, that
any and all references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be changed to
read "Parliament"; that any and all references therein to
"Member[s] of Congress," "Senator[s]" or "Member[s] of the
House of Parliament" and any and all references to the
"President" and of "Acting President" shall be changed to read
"Prime Minister."
Section 4. (1) There shall exist, upon the ratification of these
amendments, an interim Parliament which shall continue until the
Members of the regular Parliament shall have been elected and
shall have qualified. It shall be composed of the incumbent
Members of the Senate and the House of Representatives and
the incumbent Members of the Cabinet who are heads of
executive departments.
(2) The incumbent Vice President shall automatically be a Member
of Parliament until noon of the thirtieth day of June 2010. He shall
also be a member of the cabinet and shall head a ministry. He
shall initially convene the interim Parliament and shall preside
over its session for the election of the interim Prime Minister and
until the Speaker shall have been elected by a majority vote of all
the members of the interim Parliament from among themselves.
(3) Senators whose term of office ends in 2010 shall be Members
of Parliament until noon of the thirtieth day of June 2010.
(4) Within forty-five days from ratification of these amendments,
the interim Parliament shall convene to propose amendments to,
or revisions of, this Constitution consistent with the principles of
local autonomy, decentralization and a strong bureaucracy.
"Section 5. (1) The incumbent President, who is the Chief
Executive, shall nominate, from among the members of the
interim Parliament, an interim Prime Minister, who shall be
elected by a majority vote of the members thereof. The interim
Prime Minister shall oversee the various ministries and shall
perform such powers and responsibilities as may be delegated to
him by the incumbent President."
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 (2) The interim Parliament shall provide for the election of the
members of Parliament, which shall be synchronized and held
simultaneously with the election of all local government officials.
[Thereafter, the Vice-President, as Member of Parliament, shall
immediately convene the Parliament and shall initially preside
over its session for the purpose of electing the Prime Minister,
who shall be elected by a majority vote of all its members, from
among themselves.] The duly-elected Prime Minister shall
continue to exercise and perform the powers, duties and
responsibilities of the interim Prime Minister until the expiration
of the term of the incumbent President and Vice President.28
Petitioners claim that the required number of signatures of registered
voters have been complied with, i.e., the signatories to the petition
constitute twelve percent (12%) of all the registered voters in the country,
wherein each legislative district is represented by at least three percent
(3%) of all the registered voters therein. Certifications allegedly executed
by the respective COMELEC Election Registrars of each municipality and
city verifying these signatures were attached to the petition for initiative.
The verification was allegedly done on the basis of the list of registered
voters contained in the official COMELEC list used in the immediately
preceding election.
The proposition, as formulated by petitioners, to be submitted to the
Filipino people in a plebiscite to be called for the said purpose reads:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF
THE 1987 CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL
TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM ONE SYSTEM TO THE OTHER?29
According to petitioners, the proposed amendment of Articles VI and VII
would effect a more efficient, more economical and more responsive
government. The parliamentary system would allegedly ensure harmony
between the legislative and executive branches of government, promote
greater consensus, and provide faster and more decisive governmental
action.
Sections 1 and 2 of Article XVII pertinently read:
Article XVII
SECTION 1. Any amendment to, or revision of, this Constitution
may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members;
or
(2) A constitutional convention.
SECTION 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a petition
of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by
at least three per centum of the registered voters therein. No
amendment under this section shall be authorized within five
years following the ratification of this Constitution nor oftener
than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this
right.
It can be readily gleaned that the above provisions set forth different
modes and procedures for proposals for the amendment and revision of
the Constitution:
1. Under Section 1, Article XVII, any amendment to, or revision of,
the Constitution may be proposed by
a. Congress, upon a vote of three-fourths of all its members; or
b. A constitutional convention.
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 2. Under Section 2, Article XVII, amendments to the Constitution
may be likewise directly proposed by the people through
initiative.
The framers of the Constitution deliberately adopted the terms
"amendment" and "revision" and provided for their respective modes
and procedures for effecting changes of the Constitution fully cognizant
of the distinction between the two concepts. Commissioner Jose E.
Suarez, the Chairman of the Committee on Amendments and Transitory
Provisions, explained:
MR. SUAREZ. One more point, and we will be through.
We mentioned the possible use of only one term and that is,
"amendment." However, the Committee finally agreed to use the
terms "amendment" or "revision" when our attention was
called by the honorable Vice-President to the substantial
difference in the connotation and significance between the said
terms. As a result of our research, we came up with the
observations made in the famous or notorious Javellana
doctrine, particularly the decision rendered by Honorable Justice
Makasiar, wherein he made the following distinction between
"amendment" and "revision" of an existing Constitution:
"Revision" may involve a rewriting of the whole Constitution. On
the other hand, the act of amending a constitution envisages a
change of specific provisions only. The intention of an act to
amend is not the change of the entire Constitution, but only the
improvement of specific parts or the addition of provisions
deemed essential as a consequence of new conditions or the
elimination of parts already considered obsolete or unresponsive
to the needs of the times.
The 1973 Constitution is not a mere amendment to the 1935
Constitution. It is a completely new fundamental Charter
embodying new political, social and economic concepts.
So, the Committee finally came up with the proposal that these
two terms should be employed in the formulation of the Article
governing amendments or revisions to the new Constitution.30
Further, the framers of the Constitution deliberately omitted the term
"revision" in Section 2, Article XVII of the Constitution because it was their
intention to reserve the power to propose a revision of the Constitution
to Congress or the constitutional convention. Stated in another manner,
it was their manifest intent that revision thereof shall not be undertaken
through the system of initiative. Instead, the revision of the Constitution
shall be done either by Congress or by a constitutional convention.
It is significant to note that, originally, the provision on the system of
initiative was included in Section 1 of the draft Article on Amendment or
Revision proposed by the Committee on Amendments and Transitory
Provisions. The original draft provided:
SEC. 1. Any amendment to, or revision of, this Constitution may be
proposed:
(a) by the National Assembly upon a vote of three-fourths of all its
members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided
for in Article __ Section __ of the Constitution.31
However, after deliberations and interpellations, the members of the
Commission agreed to remove the provision on the system of initiative
from Section 1 and, instead, put it under a separate provision, Section 2. It
was explained that the removal of the provision on initiative from the
other "traditional modes" of changing the Constitution was precisely to
limit the former (system of initiative) to amendments to the Constitution.
It was emphasized that the system of initiative should not extend to
revision.
274
 MR. SUAREZ. Thank you, Madam President.
May we respectfully call the attention of the Members of the
Commission that pursuant to the mandate given to us last night,
we submitted this afternoon a complete Committee Report No. 7
which embodies the proposed provision governing the matter of
initiative. This is now covered by Section 2 of the complete
committee report. With the permission of the Members, may I
quote Section 2:
The people may, after five years from the date of the last
plebiscite held, directly propose amendments to this Constitution
thru initiative upon petition of at least ten percent of the
registered voters.
This completes the blanks appearing in the original Committee
Report No. 7. This proposal was suggested on the theory that this
matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from
the traditional modes of amending the Constitution as embodied
in Section 1. The committee members felt that this system of
initiative should be limited to amendments to the Constitution
and should not extend to the revision of the entire Constitution,
so we removed it from the operation of Section 1 of the proposed
Article on Amendment or Revision. x x x32
The intention to exclude "revision" of the Constitution as a mode that
may be undertaken through the system of initiative was reiterated and
made clear by Commissioner Suarez in response to a suggestion of
Commissioner Felicitas Aquino:
MR. SUAREZ. Section 2 must be interpreted together with the
provisions of Section 4, except that in Section 4, as it is presently
drafted, there is no take-off date for the 60-day and 90-day
periods.
MS. AQUINO. Yes. In other words, Section 2 is another alternative
mode of proposing amendments to the Constitution which would
further require the process of submitting it in a plebiscite, in
which case it is not self-executing.
MR. SUAREZ. No, not unless we settle and determine the take-off
period.
MS. AQUINO. In which case, I am seriously bothered by providing
this process of initiative as a separate section in the Article on
Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another
separate section as if it were a self-executing provision?
MR SUAREZ. We would be amenable except that, as we clarified a
while ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the
sense conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to
include the process of revision; whereas, the process of initiation
to amend, which is given to the public, would only apply to
amendments?
MR. SUAREZ. That is right. Those were the terms envisioned by
the Committee.33
Then Commissioner Hilario P. Davide, Jr. (later Chief Justice) also made
the clarification with respect to the observation of Commissioner
Regalado Maambong:
MR. MAAMBONG. My first question: Commissioner Davide's
proposed amendment on line 1 refers to "amendments." Does it
not cover the word "revision" as defined by Commissioner Padilla
275
 when he made the distinction between the words "amendments"
and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and
"revision" should be covered by Section 1. So insofar as initiative
is concerned, it can only relate to "amendments" not "revision."34
After several amendments, the Commission voted in favor of the
following wording of Section 2:
AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE
UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL
NUMBER OF REGISTERED VOTERS OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT
OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER
THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
Sections 1 and 2, Article XVII as eventually worded read:
Article XVII
SECTION 1. Any amendment to, or revision of, this Constitution
may be proposed by:
(3) The Congress, upon a vote of three-fourths of all its Members;
or
(4) A constitutional convention.
SEC. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative, upon a petition of at
least twelve per centum of the total number of registered voters,
of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment
under this section shall be authorized within five years following
the ratification of this Constitution nor oftener than once every
five years thereafter.
The Congress shall provide for the implementation of the exercise of this
right.
The final text of Article XVII on Amendments or Revisions clearly makes a
substantial differentiation not only between the two terms but also
between two procedures and their respective fields of application.
Ineluctably, the system of initiative under Section 2, Article XVII as a mode
of effecting changes in the Constitution is strictly limited to amendments
not to a revision thereof.
As opined earlier, the framers of the Constitution, in providing for
"amendment" and "revision" as different modes of changing the
fundamental law, were cognizant of the distinction between the two
terms. They particularly relied on the distinction made by Justice Felix
Antonio in his concurring opinion in Javellana v. Executive Secretary,35 the
controversial decision which gave imprimatur to the 1973 Constitution of
former President Ferdinand E. Marcos, as follows:
There is clearly a distinction between revision and amendment of
an existing constitution. Revision may involve a rewriting of the
whole constitution. The act of amending a constitution, on the
other hand, envisages a change of only specific provisions. The
intention of an act to amend is not the change of the entire
constitution, but only the improvement of specific parts of the
existing constitution of the addition of provisions deemed
essential as a consequence of new conditions or the elimination
of parts already considered obsolete or unresponsive to the
needs of the times. The 1973 Constitution is not a mere
amendment to the 1935 Constitution. It is a completely new
fundamental charter embodying new political, social and
economic concepts.36
276
Other elucidation on the distinction between "amendment" and
"revision" is enlightening. For example, Dean Vicente G. Sinco, an
eminent authority on political law, distinguished the two terms in this
manner:
Strictly speaking, the act of revising a constitution involves
alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important
provisions. But whatever results the revisions may produce, the
factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention
and plan must contemplate a consideration of all the provisions
of the constitution to determine which one should be altered or
suppressed or whether the whole document should be replaced
with an entirely new one.
The act of amending a constitution, on the other hand, envisages
a change of only a few specific provisions. The intention of an act
to amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather
is to improve the specific parts of the existing constitution or to
add to it provisions deemed essential on account of changed
conditions or to suppress portions of it that seemed obsolete, or
dangerous, or misleading in their effect.37
In the United States, the Supreme Court of Georgia in Wheeler v. Board of
Trustees38 had the occasion to make the distinction between the two
terms with respect to Ga.L. 1945, an instrument which "amended" the
1877 Constitution of Georgia. It explained the term "amendment:"
"Amendment" of a statute implies its survival and not
destruction. It repeals or changes some provision, or adds
something thereto. A law is amended when it is in whole or in
part permitted to remain, and something is added to or taken
from it, or it is in some way changed or altered to make it more
complete or perfect, or to fit it the better to accomplish the
object or purpose for which it was made, or some other object or
purpose.39
On the other hand, the term "revision" was explained by the said US
appellate court:
x x x When a house is completely demolished and another is
erected on the same location, do you have a changed, repaired
and altered house, or do you have a new house? Some of the
materials contained in the old house may be used again, some of
the rooms may be constructed the same, but this does not alter
the fact that you have altogether another or a new house. We
conclude that the instrument as contained in Ga.L. 1945, pp. 8 to
89, inclusive, is not an amendment to the constitution of 1877; but
on the contrary it is a completely revised or new constitution.40
Fairly recently, Fr. Joaquin Bernas, SJ, a member of the Constitutional
Commission, expounded on the distinction between the two terms thus:
An amendment envisages an alteration of one or a few specific
and separable provisions. The guiding original intention of an
amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific
portions that may have become obsolete or that are judged to be
dangerous. In revision, however, the guiding original intention
and plan contemplate a re-examination of the entire document
or of provisions of the document (which have overall implications
for the entire document or for the fundamental philosophical
underpinnings of the document) to determine how and to what
extent it should be altered. Thus, for instance, a switch from the
presidential system to a parliamentary system would be a revision
because of its overall impact on the entire constitutional
structure. So would a switch from a bicameral system to a
unicameral system because of its effect on other important
provisions of the Constitution.
It is thus clear that what distinguishes revision from amendment
is not the quantum of change in the document. Rather, it is the
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 fundamental qualitative alteration that effects revision. Hence, I
must reject the puerile argument that the use of the plural form
of "amendments" means that a revision can be achieved by the
introduction of a multiplicity of amendments!41
Given that revision necessarily entails a more complex, substantial and
far-reaching effects on the Constitution, the framers thereof wisely
withheld the said mode from the system of initiative. It should be recalled
that it took the framers of the present Constitution four months from
June 2, 1986 until October 15, 1986 to come up with the draft Constitution
which, as described by the venerable Justice Cecilia Muoz Palma, the
President of the Constitutional Commission of 1986, "gradually and
painstakingly took shape through the crucible of sustained sometimes
passionate and often exhilarating debates that intersected all dimensions
of the national life."42
Evidently, the framers of the Constitution believed that a revision thereof
should, in like manner, be a product of the same extensive and intensive
study and debates. Consequently, while providing for a system of
initiative where the people would directly propose amendments to the
Constitution, they entrusted the formidable task of its revision to a
deliberative body, the Congress or Constituent Assembly.
The Constitution is the fundamental law of the state, containing the
principles upon which the government is founded, and regulating the
division of sovereign powers, directing to what persons each of those
powers is to be confided and the manner in which it is to be exercised.43
The Philippines has followed the American constitutional legal system in
the sense that the term constitution is given a more restricted meaning,
i.e., as a written organic instrument, under which governmental powers
are both conferred and circumscribed.44
The Constitution received its force from the express will of the people. An
overwhelming 16,622,111, out of 21,785,216 votes cast during the
plebiscite, or 76.30% ratified the present Constitution on February 2,
1987.45 In expressing that will, the Filipino people have incorporated
therein the method and manner by which the same can be amended and
revised, and when the electorate have incorporated into the fundamental
law the particular manner in which the same may be altered or changed,
then any course which disregards that express will is a direct violation of
the fundamental law.46
Further, these provisions having been incorporated in the Constitution,
where the validity of a constitutional amendment or revision depends
upon whether such provisions have been complied with, such question
presents for consideration and determination a judicial question, and the
courts are the only tribunals vested with power under the Constitution to
determine such question.47
Earlier, it was mentioned that Article XVII, by the use of the terms
"amendment" and "revision," clearly makes a differentiation not only
between the two terms but also between two procedures and their
respective fields of application. On this point, the case of McFadden v.
Jordan48 is instructive. In that case, a "purported initiative amendment"
(referred to as the proposed measure) to the State Constitution of
California, then being proposed to be submitted to the electors for
ratification, was sought to be enjoined. The proposed measure,
denominated as "California Bill of Rights," comprised a single new article
with some 208 subsections which would repeal or substantially alter at
least 15 of the 25 articles of the California State Constitution and add at
least four new topics. Among the likely effects of the proposed measure
were to curtail legislative and judicial functions, legalize gaming,
completely revise the taxation system and reduce the powers of cities,
counties and courts. The proposed measure also included diverse matters
as ministers, mines, civic centers, liquor control and naturopaths.
The Supreme Court of California enjoined the submission of the proposed
measure to the electors for ratification because it was not an
"amendment" but a "revision" which could only be proposed by a
convention. It held that from an examination of the proposed measure
itself, considered in relation to the terms of the California State
Constitution, it was clear that the proposed initiative enactment
amounted substantially to an attempted revision, rather than
amendment, thereof; and that inasmuch as the California State
Constitution specifies (Article XVIII 2 thereof) that it may be revised by
means of constitutional convention but does not provide for revision by
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initiative measure, the submission of the proposed measure to the
electorate for ratification must be enjoined.
As piercingly enunciated by the California State Supreme Court in
McFadden, the differentiation required (between amendment and revision)
is not merely between two words; more accurately it is between two
procedures and between their respective fields of application. Each
procedure, if we follow elementary principles of statutory construction,
must be understood to have a substantial field of application, not to be a
mere alternative procedure in the same field. Each of the two words, then,
must be understood to denote, respectively, not only a procedure but also a
field of application appropriate to its procedure.49
Provisions regulating the time and mode of effecting organic changes are
in the nature of safety-valves they must not be so adjusted as to
discharge their peculiar function with too great facility, lest they become
the ordinary escape-pipes of party passion; nor, on the other hand, must
they discharge it with such difficulty that the force needed to induce
action is sufficient also to explode the machine. Hence, the problem of
the Constitution maker is, in this particular, one of the most difficult in
our whole system, to reconcile the requisites for progress with the
requisites for safety.50
Like in McFadden, the present petition for initiative on amendments to
the Constitution is, despite its denomination, one for its revision. It
purports to seek the amendment only of Articles VI and VII of the
Constitution as well as to provide transitory provisions. However, as will
be shown shortly, the amendment of these two provisions will
necessarily affect other numerous provisions of the Constitution
particularly those pertaining to the specific powers of Congress and the
President. These powers would have to be transferred to the Parliament
and the Prime Minister and/or President, as the case may be. More than
one hundred (100) sections will be affected or altered thereby:
1. Section 19 of Article III (Bill of Rights) on the power of Congress
to impose the death penalty for compelling reasons involving
heinous crimes;
2. Section 2 of Article V (Suffrage) on the power of Congress to
provide for securing the secrecy and sanctity of the ballot as well
as a system for absentee voting;
3. All 32 Sections of Article VI on the Legislative Department;
4. All 23 Sections of Article VII on the Executive Department;
5. The following Sections of Article VIII (Judicial Department):
- Section 2 on power of Congress to define, prescribe and
apportion the jurisdiction of various courts;
- Section 7 on the power of Congress to prescribe the
qualifications of judges of lower courts;
- Section 8 on the composition of Judicial Bar Council
(JBC) which includes representatives of Congress as ex
officio members and on the power of the President to
appoint the regular members of the JBC;
- Section 9 on the power of the President to appoint the
members of the Supreme Court and judges of lower
courts;
- Section 16 on duty of Supreme Court to make annual
report to the President and Congress.
6. The following Sections of Article IX (Constitutional
Commissions);
- (B) Section 3 on duty of Civil Service Commission to
make annual report to the President and Congress;
- (B) Section 5 on power of Congress to provide by law for
the standardization of compensation of government
officials;
279
- (B) Section 8 which provides in part that "no public
officer shall accept, without the consent of Congress, any
present, emolument, etc. x x x"
- (C) Section 1 on the power of the President to appoint
the Chairman and Commissioners of the Commission on
Elections with the consent of the Commission on
Appointments;
- (C) Section 2 (7) on the power of the COMELEC to
recommend to Congress measures to minimize election
spending x x x;
- (C) Section 2 (8) on the duty of the COMELEC to
recommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other
disciplinary action x x x;
- (C) Section 2 (9) on the duty of the COMELEC to submit
to the President and Congress a report on the conduct of
election, plebiscite, etc.;
- (C) Section 5 on the power of the President, with the
favorable recommendation of the COMELEC, to grant
pardon, amnesty, parole, or suspension of sentence for
violation of election laws, rules and regulations;
- (C) Section 7 which recognizes as valid votes cast in favor
of organization registered under party-list system;
- (C) Section 8 on political parties, organizations or
coalitions under the party-list system;
- (D) Section 1 (2) on the power of the President to
appoint the Chairman and Commissioners of the
Commission on Audit (COA) with the consent of the
Commission of Appointments;
- Section 4 on duty of the COA to make annual report to
the President and Congress.
7. The following Sections of Article X (Local Government):
- Section 3 on the power of Congress to enact a local
government code;
- Section 4 on the power of the President to exercise
general supervision over local government units (LGUs);
- Section 5 on the power of LGUs to create their own
sources of income x x x, subject to such guidelines as
Congress may provide;
- Section 11 on the power of Congress to create special
metropolitan political subdivisions;
- Section 14 on the power of the President to provide for
regional development councils x x x;
- Section 16 on the power of the President to exercise
general supervision over autonomous regions;
- Section 18 on the power of Congress to enact organic act
for each autonomous region as well as the power of the
President to appoint the representatives to the regional
consultative commission;
- Section 19 on the duty of the first Congress elected
under the Constitution to pass the organic act for
autonomous regions in Muslim Mindanao and the
Cordilleras.
8. The following Sections of Article XI (Accountability of Public
Officers):
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 - Section 2 on the impeachable officers (President, Vice-
President, etc.);
- Section 3 on impeachment proceedings (exclusive power
of the House to initiate complaint and sole power of the
Senate to try and decide impeachment cases);
- Section 9 on the power of the President to appoint the
Ombudsman and his deputies;
- Section 16 which provides in part that "x x x no loans or
guaranty shall be granted to the President, Vice-President,
etc.
- Section 17 on mandatory disclosure of assets and
liabilities by public officials including the President, Vice-
President, etc.
9. The following Sections of Article XII (National Economy and
Patrimony):
- Section 2 on the power of Congress to allow, by law,
small-scale utilization of natural resources and power of
the President to enter into agreements with foreign-
owned corporations and duty to notify Congress of every
contract;
- Section 3 on the power of Congress to determine size of
lands of public domain;
- Section 4 on the power of Congress to determine
specific limits of forest lands;
- Section 5 on the power of Congress to provide for
applicability of customary laws;
- Section 9 on the power of Congress to establish an
independent economic and planning agency to be headed
by the President;
- Section 10 on the power of Congress to reserve to
Filipino citizens or domestic corporations(at least 60%
Filipino-owned) certain areas of investment;
- Section 11 on the sole power of Congress to grant
franchise for public utilities;
- Section 15 on the power of Congress to create an agency
to promote viability of cooperatives;
- Section 16 which provides that Congress shall not,
except by general law, form private corporations;
- Section 17 on the salaries of the President, Vice-
President, etc. and the power of Congress to adjust the
same;
- Section 20 on the power of Congress to establish central
monetary authority.
10. The following Sections of Article XIII (Social Justice and Human
Rights):
- Section 1 on the mandate of Congress to give highest
priority to enactment of measures that protect and
enhance the right of people x x x
- Section 4 on the power of Congress to prescribe
retention limits in agrarian reform;
- Section 18 (6) on the duty of the Commission on Human
Rights to recommend to Congress effective measures to
promote human rights;
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 - Section 19 on the power of Congress to provide for other
cases to fall within the jurisdiction of the Commission on
Human Rights.
11. The following Sections of Article XIV (Education, Science and
Technology, etc.):
- Section 4 on the power of Congress to increase Filipino
equity participation in educational institutions;
- Section 6 which provides that subject to law and as
Congress may provide, the Government shall sustain the
use of Filipino as medium of official communication;
- Section 9 on the power of Congress to establish a
national language commission;
- Section 11 on the power of Congress to provide for
incentives to promote scientific research.
12. The following Sections of Article XVI (General Provisions):
- Section 2 on the power of Congress to adopt new name
for the country, new national anthem, etc.;
- Section 5 (7) on the tour of duty of the Chief of Staff
which may be extended by the President in times of war
or national emergency declared by Congress;
- Section 11 on the power of Congress to regulate or
prohibit monopolies in mass media;
- Section 12 on the power of Congress to create
consultative body to advise the President on indigenous
cultural communities.
13. The following Sections of Article XVII (Amendments or
Revisions):
- Section 1 on the amendment or revision of Constitution
by Congress;
- Section 2 on the duty of Congress to provide for the
implementation of the system of initiative;
- Section 3 on the power of Congress to call constitutional
convention to amend or revise the Constitution.
14. All 27 Sections of Article XVIII (Transitory Provisions).
The foregoing enumeration negates the claim that "the big bulk of the
1987 Constitution will not be affected."51 Petitioners' proposition, while
purportedly seeking to amend only Articles VI and VII of the Constitution
and providing transitory provisions, will, in fact, affect, alter, replace or
repeal other numerous articles and sections thereof. More than the
quantitative effects, however, the revisory character of petitioners'
proposition is apparent from the qualitative effects it will have on the
fundamental law.
I am not impervious to the commentary of Dean Vicente G. Sinco that the
revision of a constitution, in its strict sense, refers to a consideration of
the entire constitution and the procedure for effecting such change;
while amendment refers only to particular provisions to be added to or to
be altered in a constitution.52
For clarity and accuracy, however, it is necessary to reiterate below Dean
Sinco's more comprehensive differentiation of the terms:
Strictly speaking, the act of revising a constitution involves
alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important
provisions. But whatever results the revisions may produce, the
282
 factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention
and plan must contemplate a consideration of all the provisions
of the constitution to determine which one should be altered or
suppressed or whether the whole document should be replaced
with an entirely new one.
The act of amending a constitution, on the other hand, envisages
a change of only a few specific provisions. The intention of an act
to amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather
is to improve the specific parts of the existing constitution or to
add to it provisions deemed essential on account of changed
conditions or to suppress portions of it that seemed obsolete, or
dangerous, or misleading in their effect.53
A change in the form of government from bicameral-presidential to
unicameral-parliamentary, following the above distinction, entails a
revision of the Constitution as it will involve "alteration of different
portions of the entire document" and "may result in the rewriting of the
whole constitution, or the greater portion of it, or perhaps only some of
its important provisions."
More importantly, such shift in the form of government will, without
doubt, fundamentally change the basic plan and substance of the present
Constitution. The tripartite system ordained by our fundamental law
divides governmental powers into three distinct but co-equal branches:
the legislative, executive and judicial. Legislative power, vested in
Congress which is a bicameral body consisting of the House of
Representatives and the Senate, is the power to make laws and to alter
them at discretion. Executive power, vested in the President who is
directly elected by the people, is the power to see that the laws are duly
executed and enforced. Judicial power, vested in the Supreme Court and
the lower courts, is the power to construe and apply the law when
controversies arise concerning what has been done or omitted under it.
This separation of powers furnishes a system of checks and balances
which guards against the establishment of an arbitrary or tyrannical
government.
Under a unicameral-parliamentary system, however, the tripartite
separation of power is dissolved as there is a fusion between the
executive and legislative powers. Essentially, the President becomes a
mere "symbolic head of State" while the Prime Minister becomes the
head of government who is elected, not by direct vote of the people, but
by the members of the Parliament. The Parliament is a unicameral body
whose members are elected by legislative districts. The Prime Minister, as
head of government, does not have a fixed term of office and may only
be removed by a vote of confidence of the Parliament. Under this form of
government, the system of checks and balances is emasculated.
Considering the encompassing scope and depth of the changes that
would be effected, not to mention that the Constitution's basic plan and
substance of a tripartite system of government and the principle of
separation of powers underlying the same would be altered, if not
entirely destroyed, there can be no other conclusion than that the
proposition of petitioners Lambino, et al. would constitute a revision of
the Constitution rather than an amendment or "such an addition or
change within the lines of the original instrument as will effect an
improvement or better carry out the purpose for which it was framed."54
As has been shown, the effect of the adoption of the petitioners'
proposition, rather than to "within the lines of the original instrument"
constitute "an improvement or better carry out the purpose for which it
was framed," is to "substantially alter the purpose and to attain
objectives clearly beyond the lines of the Constitution as now cast."55
To paraphrase McFadden, petitioners' contention that any change less
than a total one is amendatory would reduce to the rubble of absurdity
the bulwark so carefully erected and preserved. A case might,
conceivably, be presented where the question would be occasion to
undertake to define with nicety the line of demarcation; but we have no
case or occasion here.
As succinctly by Fr. Joaquin Bernas, "a switch from the presidential
system to a parliamentary system would be a revision because of its
overall impact on the entire constitutional structure. So would a switch
from a bicameral system to a unicameral system because of its effect on
other important provisions of the Constitution. It is thus clear that what
283
distinguishes revision from amendment is not the quantum of change in 6. An abstract or summary proposition in not more than one
the document. Rather, it is the fundamental qualitative alteration that hundred (100) words which shall be legibly written or printed at
effects revision."56 the top of every page of the petition.

The petition for initiative on amendments to the Constitution filed by Section 7 thereof requires that the signatures be verified in this wise:
petitioners Lambino, et al., being in truth and in fact a proposal for the
revision thereof, is barred from the system of initiative upon any legally SEC. 7. Verification of Signatures. The Election Registrar shall
permissible construction of Section 2, Article XVII of the Constitution. verify the signatures on the basis of the registry list of voters,
voters' affidavits and voters' identification cards used in the
The Petition for Initiative on immediately preceding election.
Amendments to the Constitution
is, on its Face, Insufficient in The law mandates upon the election registrar to personally verify the
Form and Substance signatures. This is a solemn and important duty imposed on the election
registrar which he cannot delegate to any other person, even to barangay
Again, even granting arguendo RA 6735 is declared sufficient to officials. Hence, a verification of signatures made by persons other than
implement the system of initiative and that COMELEC Resolution No. the election registrars has no legal effect.
2300, as it prescribed rules and regulations on the conduct of initiative on
amendments to the Constitution, is valid, still, the petition for initiative on In patent violation of the law, several certifications submitted by
amendments to the Constitution must be dismissed for being insufficient petitioners showed that the verification of signatures was made, not by
in form and substance. the election registrars, but by barangay officials. For example, the
certification of the election officer in Lumbatan, Lanao del Sur reads in
Section 5 of RA 6735 requires that a petition for initiative on the full:
Constitution must state the following:
LOCAL ELECTION OFFICER'S CERTIFICATION57
1. Contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be; THIS IS TO CERTIFY that based on the verifications made by the
Barangay Officials in this City/Municipality, as attested to by two
2. The proposition; (2) witnesses from the same Barangays, which is part of the 2nd
Legislative District of the Province of Lanao del Sur, the names
3. The reason or reasons therefor; appearing on the attached signature sheets relative to the
proposed initiative on Amendments to the 1987 Constitution, are
4. That it is not one of the exceptions provided herein; those of bonafide resident of the said Barangays and correspond
to the names found in the official list of registered voters of the
5. Signatures of the petitioners or registered voters; and Commission on Elections and/or voters' affidavit and/or voters'
identification cards.

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 It is further certified that the total number of signatures of the registered voters, of which every legislative district must be represented
registered voters for the City/Municipality of LUMBATAN, LANAO by at least three percent (3%) of the registered voters therein.
DEL SUR as appearing in the affixed signatures sheets is ONE
THOUSAND ONE HUNDRED EIGHTY (1,180). Petitioners cannot disclaim the veracity of these damaging certifications
because they themselves submitted the same to the COMELEC and to the
April 2, 2006 Court in the present case to support their contention that the
requirements of RA 6735 had been complied with and that their petition
IBRAHIM M. MACADATO for initiative is on its face sufficient in form and substance. They are in the
Election Officer nature of judicial admissions which are conclusive and binding on
petitioners.97 This being the case, the Court must forthwith order the
(Underscoring supplied) dismissal of the petition for initiative for being, on its face, insufficient in
form and substance. The Court should make the adjudication entailed by
The ineffective verification in almost all the legislative districts in the the facts here and now, without further proceedings, as it has done in
Autonomous Region of Muslim Mindanao (ARMM) alone is shown by the other cases.98
certifications, similarly worded as above-quoted, of the election registrars
of Buldon, Maguindanao;58 Cotabato City (Special Province);59 Datu Odin It is argued by petitioners that, assuming arguendo that the COMELEC is
Sinsuat, Maguindanao;60 Matanog, Maguindanao;61 Parang, correct in relying on Santiago that RA 6735 is inadequate to cover
62 63
Maguindanao; Kabantalan, Maguindanao; Upi, Maguinadano; Barira, 64 initiative to the Constitution, this cannot be used to legitimize its refusal
Maguindanao;65 Sultan, Mastura;66 Ampatuan, Maguindanao;67 Buluan, to heed the people's will. The fact that there is no enabling law should
Maguindanao;68 Datu Paglas, Maguindanao;69 Datu Piang, not prejudice the right of the sovereign people to propose amendments
Maguindanao; 70
Shariff Aguak, Maguindanao; 71
Pagalungan, to the Constitution, which right has already been exercised by 6,327,952
Maguindanao;72 Talayan, Maguindanao;73 Gen. S.K. Pendatun, voters. The collective and resounding act of the particles of sovereignty
Maguindanao;74 Mamasapano, Maguindanao;75 Talitay, Maguindanao;76 must not be set aside. Hence, the COMELEC should be ordered to comply
Guindulungan, Maguindanao;77 Datu Saudi Ampatuan, Maguindanao;78 with Section 4, Article XVII of the 1987 Constitution via a writ of
Datu Unsay, Maguindanao;79 Pagagawan, Maguindanao;80 Rajah Buayan, mandamus. The submission of petitioners, however, is unpersuasive.
Maguindanao;81 Indanan, Sulu;82 Jolo, Sulu;83 Maimbung, Sulu;84 Hadji
Panglima, Sulu;85 Pangutaran, Sulu;86 Parang, Sulu;87 Kalingalan Caluang, Mandamus is a proper recourse for citizens who act to enforce a public
Sulu;88 Luuk, Sulu;89 Panamao, Sulu;90 Pata, Sulu;91 Siasi, Sulu;92 Tapul, right and to compel the persons of a public duty most especially when
Sulu;93 Panglima Estino, Sulu;94 Lugus, Sulu;95 and Pandami, Sulu. 96 mandated by the Constitution.99 However, under Section 3, Rule 65 of the
1997 Rules of Court, for a petition for mandamus to prosper, it must be
Section 7 of RA 6735 is clear that the verification of signatures shall be shown that the subject of the petition is a ministerial act or duty and not
done by the election registrar, and by no one else, including the barangay purely discretionary on the part of the board, officer or person, and that
officials. The foregoing certifications submitted by petitioners, instead of petitioner has a well-defined, clear and certain right to warrant the grant
aiding their cause, justify the outright dismissal of their petition for thereof. A purely ministerial act or duty is one which an officer or tribunal
initiative. Because of the illegal verifications made by barangay officials in performs in a given state of facts, in a prescribed manner, in obedience to
the above-mentioned legislative districts, it necessarily follows that the the mandate of a legal authority, without regard to or the exercise of his
petition for initiative has failed to comply with the requisite number of own judgment upon the propriety or impropriety of the act done. If the
signatures, i.e., at least twelve percent (12%) of the total number of law imposes a duty upon a public official and gives him the right to decide
285
how or when the duty should be performed, such duty is discretionary
and not ministerial. The duty is ministerial only when the discharge of the
same requires neither the exercise of an official discretion nor
judgment.100
To stress, in a petition for mandamus, petitioner must show a well
defined, clear and certain right to warrant the grant thereof.101 In this
case, petitioners failed to establish their right to a writ of mandamus as
shown by the foregoing disquisitions.
Remand of the Case to the
COMELEC is Not Authorized by
RA 6735 and COMELEC Resolution No. 2300
The dissenting opinion posits that the issue of whether or not the petition
for initiative has complied with the requisite number of signatures of at
least twelve percent (12%) of the total number of registered voters, of
which every legislative district must be represented by at least three
percent (3%) of the registered voters therein, involves contentious facts.
The dissenting opinion cites the petitioners' claim that they have
complied with the same while the oppositors-intervenors have vigorously
refuted this claim by alleging, inter alia, that the signatures were not
properly verified or were not verified at all. Other oppositors-intervenors
have alleged that the signatories did not fully understand what they have
signed as they were misled into signing the signature sheets.
According to the dissenting opinion, the sufficiency of the petition for
initiative and its compliance with the requirements of RA 6735 on
initiative and its implementing rules is a question that should be resolved
by the COMELEC at the first instance. It thus remands the case to the
COMELEC for further proceedings.
To my mind, the remand of the case to the COMELEC is not warranted.
There is nothing in RA 6735, as well as in COMELEC Resolution No. 2300,
granting that it is valid to implement the former statute, that authorizes
the COMELEC to conduct any kind of hearing, whether full-blown or trial-
type hearing, summary hearing or administrative hearing, on a petition
for initiative.
Section 41 of COMELEC Resolution No. 2300 provides that "[a]n initiative
shall be conducted under the control and supervision of the Commission
in accordance with Article III hereof." Pertinently, Sections 30, 31 and 32
of Article III of the said implementing rules provide as follows:
Sec. 30. Verification of signatures. The Election Registrar shall
verify the signatures on the basis of the registry list of voters,
voters' affidavits and voters' identification cards used in the
immediately preceding election.
Sec. 31. Determination by the Commission. The Commission shall
act on the findings of the sufficiency or insufficiency of the
petition for initiative or referendum.
If it should appear that the required number of signatures has not
been obtained, the petition shall be deemed defeated and the
Commission shall issue a declaration to that effect.
If it should appear that the required number of signatures has
been obtained, the Commission shall set the initiative or
referendum in accordance with the succeeding sections.
Sec. 32. Appeal. The decision of the Commission on the findings
of the sufficiency and insufficiency of the petition for initiative or
referendum may be appealed to the Supreme Court within thirty
(30) days from notice hereof.
Clearly, following the foregoing procedural rules, the COMELEC is not
authorized to conduct any kind of hearing to receive any evidence for or
against the sufficiency of the petition for initiative. Rather, the foregoing
rules require of the COMELEC to determine the sufficiency or
insufficiency of the petition for initiative on its face. And it has already
been shown, by the annexes submitted by the petitioners themselves,
their petition is, on its face, insufficient in form and substance. The
remand of the case to the COMELEC for reception of evidence of the
parties on the contentious factual issues is, in effect, an amendment of
286
the abovequoted rules of the COMELEC by this Court which the Court is
not empowered to do.
The Present Petition Presents a CONCOM expanded and sharpened the checking powers of the
Justiciable Controversy; Hence,
a Non-Political Question. Further,
the People, Acting in their Sovereign
Capacity, Have Bound Themselves
to Abide by the Constitution
Political questions refer to those questions which, under the Constitution,
are to be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the legislative
or executive branch of government.102 A political question has two
aspects: (1) those matters that are to be exercised by the people in their
primary political capacity; and (2) matters which have been specifically
designated to some other department or particular office of the
government, with discretionary power to act.103
In his concurring and dissenting opinion in Arroyo v. De Venecia,104 Senior
Associate Justice Reynato S. Puno explained the doctrine of political
question vis--vis the express mandate of the present Constitution for the
courts to determine whether or not there has been a grave abuse of
discretion on the part of any branch or instrumentality of the
Government:
In the Philippine setting, there is more compelling reason for
courts to categorically reject the political question defense when
its interposition will cover up abuse of power. For Section 1,
Article VIII of our Constitution was intentionally cobbled to
empower courts "... to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government." This power is new and was not granted to our
courts in the 1935 and 1972 Constitutions. It was also not xeroxed
from the US Constitution or any foreign state constitution. The
CONCOM [Constitutional Commission] granted this enormous
power to our courts in view of our experience under martial law
where abusive exercises of state power were shielded from
judicial scrutiny by the misuse of the political question doctrine.
Led by the eminent former Chief Justice Roberto Concepcion, the
judiciary vis--vis the Executive and the Legislative departments of
government. In cases involving the proclamation of martial law
and suspension of the privilege of habeas corpus, it is now
beyond dubiety that the government can no longer invoke the
political question defense.
xxxx
To a great degree, it diminished its [political question doctrine]
use as a shield to protect other abuses of government by allowing
courts to penetrate the shield with new power to review acts of
any branch or instrumentality of the government ". . . to
determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction."
Even if the present petition involves the act, not of a governmental body,
but of purportedly more than six million registered voters who have
signified their assent to the proposal to amend the Constitution, the same
still constitutes a justiciable controversy, hence, a non-political question.
There is no doubt that the Constitution, under Article XVII, has explicitly
provided for the manner or method to effect amendments thereto, or
revision thereof. The question, therefore, of whether there has been
compliance with the terms of the Constitution is for the Court to pass
upon.105
In the United States, in In re McConaughy,106 the State Supreme Court of
Minnesota exercised jurisdiction over the petition questioning the result
of the general election holding that "an examination of the decisions
shows that the courts have almost uniformly exercised the authority to
determine the validity of the proposal, submission, or ratification of
constitutional amendments." The cases cited were Dayton v. St. Paul,107
Rice v. Palmer,108 Bott v. Wurtz,109 State v. Powell,110 among other cases.
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There is no denying that "the Philippines is a democratic and republican
State. Sovereignty resides in the people and all government authority
emanates from them."111 However, I find to be tenuous the asseveration
that "the argument that the people through initiative cannot propose
substantial amendments to change the Constitution turns sovereignty in
its head. At the very least, the submission constricts the democratic space
for the exercise of the direct sovereignty of the people."112 In effect, it is
theorized that despite the unambiguous text of Section 2, Article XVII of
the Constitution withholding the power to revise it from the system of
initiative, the people, in their sovereign capacity, can conveniently
disregard the said provision.
I strongly take exception to the view that the people, in their sovereign
capacity, can disregard the Constitution altogether. Such a view directly
contravenes the fundamental constitutional theory that while indeed
"the ultimate sovereignty is in the people, from whom springs all
legitimate authority"; nonetheless, "by the Constitution which they
establish, they not only tie up the hands of their official agencies, but
their own hands as well; and neither the officers of the state, nor the
whole people as an aggregate body, are at liberty to take action in
opposition to this fundamental law."113 The Constitution, it should be
remembered, "is the protector of the people, placed on guard by them to
save the rights of the people against injury by the people."114 This is the
essence of constitutionalism:
Through constitutionalism we placed limits on both our political
institutions and ourselves, hoping that democracies, historically
always turbulent, chaotic and even despotic, might now become
restrained, principled, thoughtful and just. So we bound ourselves
over to a law that we made and promised to keep. And though a
government of laws did not displace governance by men, it did
mean that now men, democratic men, would try to live by their
word.115
Section 2, Article XVII of the Constitution on the system of initiative is
limited only to proposals to amend to the Constitution, and does not
extend to its revision. The Filipino people have bound themselves to
observe the manner and method to effect the changes of the
Constitution. They opted to limit the exercise of the right to directly
propose amendments to the Constitution through initiative, but did not
extend the same to the revision thereof. The petition for initiative, as it
proposes to effect the revision thereof, contravenes the Constitution.
The fundamental law of the state prescribes the limitations under which
the electors of the state may change the same, and, unless such course is
pursued, the mere fact that a majority of the electors are in favor of a
change and have so expressed themselves, does not work a change. Such
a course would be revolutionary, and the Constitution of the state would
become a mere matter of form.116
The very term Constitution implies an instrument of a permanent and
abiding nature, and the provisions contained therein for its revision
indicated the will of the people that the underlying principles upon which
it rests, as well as the substantial entirety of the instrument, shall be of a
like permanent and abiding nature.117
The Filipino people have incorporated the safety valves of amendment
and revision in Article XVII of the Constitution. The Court is mandated to
ensure that these safety valves embodied in the Constitution to guard
against improvident and hasty changes thereof are not easily trifled with.
To be sure, by having overwhelmingly ratified the Constitution, the
Filipino people believed that it is "a good Constitution" and in the words
of the learned Judge Cooley:
x x x should be beyond the reach of temporary excitement and
popular caprice or passion. It is needed for stability and
steadiness; it must yield to the thought of the people; not to the
whim of the people, or the thought evolved in excitement or hot
blood, but the sober second thought, which alone, if the
government is to be safe, can be allowed efficiency. Changes in
government are to be feared unless the benefit is certain. As
Montaign says: "All great mutations shake and disorder a state.
Good does not necessarily succeed evil; another evil may succeed
and worse.118
Indisputably, the issues posed in the present case are of transcendental
importance. Accordingly, I have approached and grappled with them with
288
full appreciation of the responsibilities involved in the present case, and G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON ELECTIONS,
have given to its consideration the earnest attention which its ET AL.) and
importance demands. I have sought to maintain the supremacy of the
Constitution at whatever hazard. I share the concern of Chief Justice Day G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs. COMMISSION ON
in Koehler v. Hill:119 "it is for the protection of minorities that constitutions ELECTIONS, ET AL.).
are framed. Sometimes constitutions must be interposed for the
protection of majorities even against themselves. Constitutions are x ---------------------------------------------------------------------------------------- x
adopted in times of public repose, when sober reason holds her citadel,
and are designed to check the surging passions in times of popular SEPARATE OPINION
excitement. But if courts could be coerced by popular majorities into a
disregard of their provisions, constitutions would become mere 'ropes of AZCUNA, J.:
sand,' and there would be an end of social security and of constitutional
freedom. The cause of temperance can sustain no injury from the loss of "Why, friends, you go to do you know not what."
this amendment which would be at all comparable to the injury to
republican institutions which a violation of the constitution would inflict. -- Shakespeare, Julius Caesar, Act III, Sc. 2.
That large and respectable class of moral reformers which so justly
demands the observance and enforcement of law, cannot afford to take Article XVII of the Constitution states:
its first reformatory step by a violation of the constitution. How can it
consistently demand of others obedience to a constitution which it AMENDMENTS OR REVISIONS
violates itself? The people can in a short time re-enact the amendment. In
the manner of a great moral reform, the loss of a few years is nothing. Section 1. Any amendment to, or revision of, this Constitution may
The constitution is the palladium of republican freedom. The young men be proposed by:
coming forward upon the stage of political action must be educated to
venerate it; those already upon the stage must be taught to obey it.
(1) The Congress, upon a vote of three-fourths of all its members;
Whatever interest may be advanced or may suffer, whoever or whatever
or
may be 'voted up or voted down,' no sacrilegious hand must be laid upon
the constitution."120
(2) A constitutional convention.
WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to
Sec. 2. Amendments to this Constitution may likewise be directly
GRANT the petition in G.R. No. 174299.
proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters,
ROMEO J. CALLEJO, SR. of which every legislative district must be represented by at least
Associate Justice three per centum of the registered votes therein. No amendment
under this section shall be authorized within five years following
____________________ the ratification of this Constitution nor oftener than once every
five years thereafter.
EN BANC
289
 The Congress shall provide for the implementation of the exercise
of this right.
Sec. 3. The Congress may, by a vote of two-thirds of all its
Members, call a constitutional convention, or by a majority vote
of all its Members, submit to the electorate the question of calling
such a convention.
Sec. 4. Any amendment to, or revision of, this Constitution under
Section 1 hereof shall be valid when ratified by a majority of the
votes cast in a plebiscite which shall be held not earlier than sixty
days nor later than ninety days after the approval of such
amendment or revision.
Any amendment under Section 2 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall
be held not earlier than sixty days nor later than ninety days after
the certification by the Commission on Elections of the sufficiency
of the petition.
This Article states the procedure for changing the Constitution.
Constitutions have three parts the Constitution of Liberty, which states
the fundamental rights of the people; the Constitution of Government,
which establishes the structure of government, its branches and their
operation; and the Constitution of Sovereignty, which provides how the
Constitution may be changed.
Article XVII is the Constitution of Sovereignty.
As a result, the powers therein provided are called constituent powers.
So when Congress acts under this provision, it acts not as a legislature
exercising legislative powers. It acts as a constituent body exercising
constituent powers.
The rules, therefore, governing the exercise of legislative powers do not
apply, or do not apply strictly, to the actions taken under Article XVII.
Accordingly, since Article XVII states that Congress shall provide for the
implementation of the exercise of the people's right directly to propose
amendments to the Constitution through initiative, the act of Congress
pursuant thereto is not strictly a legislative action but partakes of a
constituent act.
As a result, Republic Act No. 6735, the act that provides for the exercise
of the people of the right to propose a law or amendments to the
Constitution is, with respect to the right to propose amendments to the
Constitution, a constituent measure, not a mere legislative one.
The consequence of this special character of the enactment, insofar as it
relates to proposing amendments to the Constitution, is that the
requirements for statutory enactments, such as sufficiency of standards
and the like, do not and should not strictly apply. As long as there is a
sufficient and clear intent to provide for the implementation of the
exercise of the right, it should be sustained, as it is simply a compliance of
the mandate placed on Congress by the Constitution.
Seen in this light, the provisions of Republic Act No. 6735 relating to the
procedure for proposing amendments to the Constitution, can and
should be upheld, despite shortcomings perhaps in legislative headings
and standards.
For this reason, I concur in the view that Santiago v. Comelec1 should be
re-examined and, after doing so, that the pronouncement therein
regarding the insufficiency or inadequacy of the measure to sustain a
people's initiative to amend the Constitution should be reconsidered in
favor of allowing the exercise of this sovereign right.
And applying the doctrine stated in Senarillos v. Hermosisima,2 penned by
Justice J.B.L. Reyes, in relation to Article 8 of the Civil Code, that a
decision of this Court interpreting a law forms part of the law interpreted
as of the time of its enactment, Republic Act No. 6735 should be deemed
sufficient and adequate from the start.
290
This next point to address, there being a sufficient law, is whether the
petition for initiative herein involved complies with the requirements of
that law as well as those stated in Article XVII of the Constitution.
True it is that ours is a democratic state, as explicitated in the Declaration
of Principles, to emphasize precisely that there are instances recognized
and provided for in the Constitution where our people directly exercise
their sovereign powers, new features set forth in this People Power
Charter, namely, the powers of recall, initiative and referendum.
Nevertheless, this democratic nature of our polity is that of a democracy
under the rule of law. This equally important point is emphasized in the
very Preamble to the Constitution, which states:
". . . the blessings of . . . democracy under the rule of law . . . ."
Such is the case with respect to the power to initiate changes in the
Constitution. The power is subject to limitations under the Constitution
itself, thus: The power could not be exercised for the first five years after
the Constitution took effect and thereafter can only be exercised once
every five years; the power only extends to proposing amendments but
not revisions; and the power needs an act of Congress providing for its
implementation, which act is directed and mandated.
The question, therefore, arises whether the proposed changes in the
Constitution set forth in the petition for initiative herein involved are
mere amendments or rather are revisions.
Revisions are changes that affect the entire Constitution and not mere
parts of it.
The reason why revisions are not allowed through direct proposals by the
people through initiative is a practical one, namely, there is no one to
draft such extensive changes, since 6.3 million people cannot conceivably
come up with a single extensive document through a direct proposal
from each of them. Someone would have to draft it and that is not
authorized as it would not be a direct proposal from the people. Such
indirect proposals can only take the form of proposals from Congress as a
Constituent Assembly under Article XVII, or a Constitutional Convention
created under the same provision. Furthermore, there is a need for such
deliberative bodies for revisions because their proceedings and debates
are duly and officially recorded, so that future cases of interpretations
can be properly aided by resort to the record of their proceedings.
Even a cursory reading of the proposed changes contained in the petition
for initiative herein involved will show on its face that the proposed
changes constitute a revision of the Constitution. The proposal is to
change the system of government from that which is bicameral-
presidential to one that is unicameral-parliamentary.
While purportedly only Articles VI, VII, and XVIII are involved, the fact is,
as the petition and text of the proposed changes themselves state, every
provision of the Constitution will have to be examined to see if they
conform to the nature of a unicameral-parliamentary form of government
and changed accordingly if they do not so conform to it. For example,
Article VIII on Judicial Department cannot stand as is, in a parliamentary
system, for under such a system, the Parliament is supreme, and thus the
Court's power to declare its act a grave abuse of discretion and thus void
would be an anomaly.
Now, who is to do such examination and who is to do such changes and
how should the changes be worded? The proposed initiative does not say
who nor how.
Not only, therefore, is the proposed initiative, on this score, a prohibited
revision but it also suffers from being incomplete and insufficient on its
very face.
It, therefore, in that form, cannot pass muster the very limits contained in
providing for the power under the Constitution.
Neither does it comply with Republic Act No. 6735, which states in
Section 10 that not more than one subject shall be proposed as an
amendment or amendments to the Constitution. The petition herein
291
would propose at the very least two subjects a unicameral legislature
and a parliamentary form of government. Again, for this clear and patent
violation of the very act that provides for the exercise of the power, the
proposed initiative cannot lie.
This does not mean, however, that all is lost for petitioners.
For the proposed changes can be separated and are, in my view,
separable in nature a unicameral legislature is one; a parliamentary form
of government is another. The first is a mere amendment and contains
only one subject matter. The second is clearly a revision that affects every
article and every provision in the Constitution to an extent not even the
proponents could at present fully articulate. Petitioners Lambino, et al.
thus go about proposing changes the nature and extent of which they do
not as yet know exactly what.
For the nonce, therefore, I vote to DISMISS the petition, without
prejudice to the filing of an appropriate initiative to propose amendments
to the Constitution to change Congress into a unicameral body. This is not
say that I favor such a change. Rather, such a proposal would come
within the purview of an initiative allowed under Article XVII of the
Constitution and its implementing Republic Act, and should, therefore, be
submitted to our people in a plebiscite for them to decide in their
sovereign capacity. After all is said and done, this is what democracy
under the rule of law is about.
ADOLFO S. AZCUNA
Associate Justice
____________________

The proposal, therefore, contained in the petition for initiative, regarding EN BANC
a change in the legislature from a bicameral or two-chamber body to that
of a unicameral or one-chamber body, is sustainable. The text of the G. R. No. 174153 October 25, 2006
changes needed to carry it out are perfunctory and ministerial in nature.
Once it is limited to this proposal, the changes are simply one of deletion RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952
and insertions, the wordings of which are practically automatic and non- REGISTERED VOTERS
discretionary. vs.
THE COMMISSION ON ELECTIONS
As an example, I attach to this opinion an Appendix "A" showing how the
Constitution would read if we were to change Congress from one G.R. No. 174299 October 25, 2006
consisting of the Senate and the House of Representatives to one
consisting only of the House of Representatives. It only affects Article VI MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q.
on the Legislative Department, some provisions on Article VII on the SAGUISAG
Executive Department, as well as Article XI on the Accountability of Public vs.
Officers, and Article XVIII on Transitory Provisions. These are mere COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S.
amendments, substantial ones indeed but still only amendments, and ABALOS, SR., and Commissioners RESSURRECCION Z. BORRA,
they address only one subject matter. FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V.
SARMIENTO, and NICODEMO T. FERRER, and John Doe and Peter Doe
Such proposal, moreover, complies with the intention and rationale
behind the present initiative, which is to provide for simplicity and x ---------------------------------------------------------------------------------------- x
economy in government and reduce the stalemates that often prevent
needed legislation. "It is a Constitution we are expounding"1
292
 Chief Justice John Marshall
DISSENTING OPINION
PUNO, J.:
The petition at bar is not a fight over molehills. At the crux of the
controversy is the critical understanding of the first and foremost of our
constitutional principles "the Philippines is a democratic and
republican State. Sovereignty resides in the people and all government
authority emanates from them."2 Constitutionalism dictates that this
creed must be respected with deeds; our belief in its validity must be
backed by behavior.
This is a Petition for Certiorari and Mandamus to set aside the resolution
of respondent Commission on Elections (COMELEC) dated August 31,
2006, denying due course to the Petition for Initiative filed by petitioners
Raul L. Lambino and Erico B. Aumentado in their own behalf and together
with some 6.3 million registered voters who have affixed their signatures
thereon, and praying for the issuance of a writ of mandamus to compel
respondent COMELEC to set the date of the plebiscite for the ratification
of the proposed amendments to the Constitution in accordance with
Section 2, Article XVII of the 1987 Constitution.
First, a flashback of the proceedings of yesteryears. In 1996, the
Movement for People's Initiative sought to exercise the sovereign
people's power to directly propose amendments to the Constitution
through initiative under Section 2, Article XVII of the 1987 Constitution. Its
founding member, Atty. Jesus S. Delfin, filed with the COMELEC on
December 6, 1996, a "Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, by People's Initiative" (Delfin Petition). It
proposed to amend Sections 4 and 7 of Article VI, Section 4 of Article VII,
and Section 8 of Article X of the 1987 Constitution by deleting the
provisions on the term limits for all elective officials.
The Delfin Petition stated that the Petition for Initiative would first be
submitted to the people and would be formally filed with the COMELEC
after it is signed by at least twelve per cent (12%) of the total number of
registered voters in the country. It thus sought the assistance of the
COMELEC in gathering the required signatures by fixing the dates and
time therefor and setting up signature stations on the assigned dates
and time. The petition prayed that the COMELEC issue an Order (1) fixing
the dates and time for signature gathering all over the country; (2)
causing the publication of said Order and the petition for initiative in
newspapers of general and local circulation; and, (3) instructing the
municipal election registrars in all the regions of the Philippines to assist
petitioner and the volunteers in establishing signing stations on the dates
and time designated for the purpose.
The COMELEC conducted a hearing on the Delfin Petition.
On December 18, 1996, Senator Miriam Defensor Santiago, Alexander
Padilla and Maria Isabel Ongpin filed a special civil action for prohibition
before this Court, seeking to restrain the COMELEC from further
considering the Delfin Petition. They impleaded as respondents the
COMELEC, Delfin, and Alberto and Carmen Pedrosa (Pedrosas) in their
capacities as founding members of the People's Initiative for Reforms,
Modernization and Action (PIRMA) which was likewise engaged in
signature gathering to support an initiative to amend the Constitution.
They argued that the constitutional provision on people's initiative may
only be implemented by a law passed by Congress; that no such law has
yet been enacted by Congress; that Republic Act No. 6735 relied upon by
Delfin does not cover the initiative to amend the Constitution; and that
COMELEC Resolution No. 2300, the implementing rules adopted by the
COMELEC on the conduct of initiative, was ultra vires insofar as the
initiative to amend the Constitution was concerned. The case was
docketed as G.R. No. 127325, entitled Santiago v. Commission on
Elections.3
Pending resolution of the case, the Court issued a temporary restraining
order enjoining the COMELEC from proceeding with the Delfin Petition
and the Pedrosas from conducting a signature drive for people's initiative
to amend the Constitution.
293
On March 19, 1997, the Court rendered its decision on the petition for
prohibition. The Court ruled that the constitutional provision granting the
people the power to directly amend the Constitution through initiative is
not self-executory. An enabling law is necessary to implement the
exercise of the people's right. Examining the provisions of R.A. 6735, a
majority of eight (8) members of the Court held that said law was
"incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned," 4
and thus voided portions of COMELEC Resolution No. 2300 prescribing
rules and regulations on the conduct of initiative on amendments to the
Constitution. It was also held that even if R.A. 6735 sufficiently covered
the initiative to amend the Constitution and COMELEC Resolution No.
2300 was valid, the Delfin Petition should still be dismissed as it was not
the proper initiatory pleading contemplated by law. Under Section 2,
Article VII of the 1987 Constitution and Section 5(b) of R.A. 6735, a
petition for initiative on the Constitution must be signed by at least
twelve per cent (12%) of the total number of registered voters, of which
every legislative district is represented by at least three per cent (3%) of
the registered voters therein. The Delfin Petition did not contain
signatures of the required number of voters. The decision stated:
CONCLUSION
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of
any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the
implementation of the system.
We feel, however, that the system of initiative to propose
amendments to the Constitution should no longer be kept in the
cold; it should be given flesh and blood, energy and strength.
Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the
right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the
system of initiative on amendments to the Constitution,
and to have failed to provide sufficient standard for
subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of
the Commission on Elections prescribing rules and
regulations on the conduct of initiative or amendments to
the Constitution; and
d) ORDERING the Commission on Elections to forthwith
DISMISS the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is
made permanent against the Commission on Elections, but is
LIFTED as against private respondents.5
Eight (8) members of the Court, namely, then Associate Justice Hilario G.
Davide, Jr. (ponente), Chief Justice Andres R. Narvasa, and Associate
Justices Florenz D. Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo,
Santiago M. Kapunan, Regino C. Hermosisima, Jr. and Justo P. Torres,
fully concurred in the majority opinion.
While all the members of the Court who participated in the deliberation6
agreed that the Delfin Petition should be dismissed for lack of the
required signatures, five (5) members, namely, Associate Justices Jose
A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J. Francisco and
Artemio V. Panganiban, held that R.A. 6735 was sufficient and adequate
to implement the people's right to amend the Constitution through
initiative, and that COMELEC Resolution No. 2300 validly provided the
details for the actual exercise of such right. Justice Jose C. Vitug, on the
other hand, opined that the Court should confine itself to resolving the
issue of whether the Delfin Petition sufficiently complied with the
requirements of the law on initiative, and there was no need to rule on
the adequacy of R.A. 6735.
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The COMELEC, Delfin and the Pedrosas filed separate motions for
reconsideration of the Court's decision.
After deliberating on the motions for reconsideration, six (6)7 of the
eight (8) majority members maintained their position that R.A. 6735 was
inadequate to implement the provision on the initiative on amendments
to the Constitution. Justice Torres filed an inhibition, while Justice
Hermosisima submitted a Separate Opinion adopting the position of the
minority that R.A. 6735 sufficiently covers the initiative to amend the
Constitution. Hence, of the thirteen (13) members of the Court who
participated in the deliberation, six (6) members, namely, Chief Justice
Narvasa and Associate Justices Regalado, Davide, Romero, Bellosillo and
Kapunan voted to deny the motions for lack of merit; and six (6)
members, namely, Associate Justices Melo, Puno, Mendoza, Francisco,
Hermosisima and Panganiban voted to grant the same. Justice Vitug
maintained his opinion that the matter was not ripe for judicial
adjudication. The motions for reconsideration were therefore denied for
lack of sufficient votes to modify or reverse the decision of March 19,
1997.8
On June 23, 1997, PIRMA filed with the COMELEC a Petition for Initiative
to Propose Amendments to the Constitution (PIRMA Petition). The
PIRMA Petition was supported by around five (5) million signatures in
compliance with R.A. 6735 and COMELEC Resolution No. 2300, and
prayed that the COMELEC, among others: (1) cause the publication of the
petition in Filipino and English at least twice in newspapers of general and
local circulation; (2) order all election officers to verify the signatures
collected in support of the petition and submit these to the Commission;
and (3) set the holding of a plebiscite where the following proposition
would be submitted to the people for ratification:
Do you approve amendments to the 1987 Constitution giving the
President the chance to be reelected for another term, similarly
with the Vice-President, so that both the highest officials of the
land can serve for two consecutive terms of six years each, and
also to lift the term limits for all other elective government
officials, thus giving Filipino voters the freedom of choice,
amending for that purpose, Section 4 of Article VII, Sections 4 and
7 of Article VI and Section 8 of Article X, respectively?
The COMELEC dismissed the PIRMA Petition in view of the permanent
restraining order issued by the Court in Santiago v. COMELEC.
PIRMA filed with this Court a Petition for Mandamus and Certiorari
seeking to set aside the COMELEC Resolution dismissing its petition for
initiative. PIRMA argued that the Court's decision on the Delfin Petition
did not bar the COMELEC from acting on the PIRMA Petition as said ruling
was not definitive based on the deadlocked voting on the motions for
reconsideration, and because there was no identity of parties and subject
matter between the two petitions. PIRMA also urged the Court to
reexamine its ruling in Santiago v. COMELEC.
The Court dismissed the petition for mandamus and certiorari in its
resolution dated September 23, 1997. It explained:
The Court ruled, first, by a unanimous vote, that no grave abuse
of discretion could be attributed to the public respondent
COMELEC in dismissing the petition filed by PIRMA therein, it
appearing that it only complied with the dispositions in the
Decision of this Court in G.R. No. 127325 promulgated on March
19, 1997, and its Resolution of June 10, 1997.
The Court next considered the question of whether there was
need to resolve the second issue posed by the petitioners,
namely, that the Court re-examine its ruling as regards R.A. 6735.
On this issue, the Chief Justice and six (6) other members of the
Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan
and Torres, JJ., voted that there was no need to take it up. Vitug,
J., agreed that there was no need for re-examination of said
second issue since the case at bar is not the proper vehicle for
that purpose. Five (5) other members of the Court, namely, Melo,
Puno, Francisco, Hermosisima, and Panganiban, JJ., opined that
there was a need for such a re-examination x x x x9
295
In their Separate Opinions, Justice (later Chief Justice) Davide and Justice
Bellosillo stated that the PIRMA petition was dismissed on the ground of
res judicata.
Now, almost a decade later, another group, Sigaw ng Bayan, seeks to
utilize anew the system of initiative to amend the Constitution, this time
to change the form of government from bicameral-presidential to
unicameral-parliamentary system.
Let us look at the facts of the petition at bar with clear eyes.
On February 15, 2006, Sigaw ng Bayan, in coordination with Union of
Local Authorities of the Philippines (ULAP), embarked on a nationwide
drive to gather signatures to support the move to adopt the
parliamentary form of government in the country through charter
change. They proposed to amend the Constitution as follows:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to
read as follows:
Section 1. (1) The legislative and executive powers shall be
vested in a unicameral Parliament which shall be
composed of as many members as may be provided by
law, to be apportioned among the provinces,
representative districts, and cities in accordance with the
number of their respective inhabitants, with at least three
hundred thousand inhabitants per district, and on the
basis of a uniform and progressive ratio. Each district shall
comprise, as far as practicable, contiguous, compact and
adjacent territory, and each province must have at least
one member.
(2) Each Member of Parliament shall be a natural-born
citizen of the Philippines, at least twenty-five years old on
the day of the election, a resident of his district for at least
one year prior thereto, and shall be elected by the
qualified voters of his district for a term of five years
without limitation as to the number thereof, except those
under the party-list system which shall be provided for by
law and whose number shall be equal to twenty per
centum of the total membership coming from the
parliamentary districts.
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are
hereby amended to read, as follows:
Section 1. There shall be a President who shall be the Head
of State. The executive power shall be exercised by a
Prime Minister, with the assistance of the Cabinet. The
Prime Minister shall be elected by a majority of all the
Members of Parliament from among themselves. He shall
be responsible to the Parliament for the program of
government.
C. For the purpose of insuring an orderly transition from the
bicameral-Presidential to a unicameral-Parliamentary form of
government, there shall be a new Article XVIII, entitled
"Transitory Provisions," which shall read, as follows:
Section 1. (1) The incumbent President and Vice President
shall serve until the expiration of their term at noon on
the thirtieth day of June 2010 and shall continue to
exercise their powers under the 1987 Constitution unless
impeached by a vote of two thirds of all the members of
the interim parliament.
(2) In case of death, permanent disability, resignation or
removal from office of the incumbent President, the
incumbent Vice President shall succeed as President. In
case of death, permanent disability, resignation or
removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all
the powers and responsibilities of Prime Minister under
Article VII as amended.
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Section 2. Upon the expiration of the term of the
incumbent President and Vice President, with the
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of
the 1987 Constitution which shall hereby be amended and
Sections 18 and 24 which shall be deleted, all other
Sections of Article VI are hereby retained and renumbered
sequentially as Section 2, ad seriatim up to 26, unless they
are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to
conform with a unicameral parliamentary form of
government; provided, however, that any and all
references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be
changed to read "Parliament;" that any and all references
therein to "Member(s) of Congress," "Senator(s)" or
"Member(s) of the House of Representatives" shall be
changed to read as "Member(s) of Parliament" and any
and all references to the "President" and/or "Acting
President" shall be changed to read "Prime Minister."
Section 3. Upon the expiration of the term of the
incumbent President and Vice President, with the
exception of Sections 1, 2, 3 and 4 of Article VII of the 1987
Constitution which are hereby amended and Sections 7, 8,
9, 10, 11 and 12 which are hereby deleted, all other
Sections of Article VII shall be retained and renumbered
sequentially as Section 2, ad seriatim up to 14, unless they
shall be inconsistent with Section 1 hereof, in which case
they shall be deemed amended so as to conform to a
unicameral Parliamentary System of government;
provided, however, that any all references therein to
"Congress," "Senate," "House of Representatives" and
"Houses of Congress" shall be changed to read
"Parliament;" that any and all references therein to
"Member(s) of Congress," "Senator(s)" or "Member(s) of
the House of Representatives" shall be changed to read
as "Member(s) of Parliament" and any and all references
to the "President" and or "Acting President" shall be
changed to read "Prime Minister."
Section 4. (1) There shall exist, upon the ratification of
these amendments, an interim Parliament which shall
continue until the Members of the regular Parliament
shall have been elected and shall have qualified. It shall be
composed of the incumbent Members of the Senate and
the House of Representatives and the incumbent
Members of the Cabinet who are heads of executive
departments.
(2) The incumbent Vice President shall automatically be a
Member of Parliament until noon of the thirtieth day of
June 2010. He shall also be a member of the cabinet and
shall head a ministry. He shall initially convene the interim
Parliament and shall preside over its sessions for the
election of the interim Prime Minister and until the
Speaker shall have been elected by a majority vote of all
the members of the interim Parliament from among
themselves.
(3) Senators whose term of office ends in 2010 shall be
Members of Parliament until noon of the thirtieth day of
June 2010.
(4) Within forty-five days from ratification of these
amendments, the interim Parliament shall convene to
propose amendments to, or revisions of, this Constitution
consistent with the principles of local autonomy,
decentralization and a strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief
Executive, shall nominate, from among the members of
the interim Parliament, an interim Prime Minister, who
shall be elected by a majority vote of the members
thereof. The interim Prime Minister shall oversee the
various ministries and shall perform such powers and
297
 responsibilities as may be delegated to him by the
incumbent President."
(2) The interim Parliament shall provide for the election of
the members of Parliament, which shall be synchronized
and held simultaneously with the election of all local
government officials. The duly elected Prime Minister
shall continue to exercise and perform the powers, duties
and responsibilities of the interim Prime Minister until the
expiration of the term of the incumbent President and
Vice President.10
Sigaw ng Bayan prepared signature sheets, on the upper portions of
which were written the abstract of the proposed amendments, to wit:
Abstract: Do you approve of the amendment of Articles VI and VII
of the 1987 Constitution, changing the form of government from
the present bicameral-presidential to a unicameral-parliamentary
system of government, in order to achieve greater efficiency,
simplicity and economy in government; and providing an Article
XVIII as Transitory Provisions for the orderly shift from one
system to another?
The signature sheets were distributed nationwide to affiliated non-
government organizations and volunteers of Sigaw ng Bayan, as well as
to the local officials. Copies of the draft petition for initiative containing
the proposition were also circulated to the local officials and multi-
sectoral groups.
Sigaw ng Bayan alleged that it also held barangay assemblies which
culminated on March 24, 25 and 26, 2006, to inform the people and
explain to them the proposed amendments to the Constitution.
Thereafter, they circulated the signature sheets for signing.
The signature sheets were then submitted to the local election officers
for verification based on the voters' registration record. Upon
completion of the verification process, the respective local election
officers issued certifications to attest that the signature sheets have
been verified. The verified signature sheets were subsequently
transmitted to the office of Sigaw ng Bayan for the counting of the
signatures.
On August 25, 2006, herein petitioners Raul L. Lambino and Erico B.
Aumentado filed with the COMELEC a Petition for Initiative to Amend the
Constitution entitled "In the Matter of Proposing Amendments to the
1987 Constitution through a People's Initiative: A Shift from a Bicameral
Presidential to a Unicameral Parliamentary Government by Amending
Articles VI and VII; and Providing Transitory Provisions for the Orderly
Shift from the Presidential to the Parliamentary System." They filed an
Amended Petition on August 30, 2006 to reflect the text of the proposed
amendment that was actually presented to the people. They alleged that
they were filing the petition in their own behalf and together with some
6.3 million registered voters who have affixed their signatures on the
signature sheets attached thereto. Petitioners appended to the petition
signature sheets bearing the signatures of registered voters which they
claimed to have been verified by the respective city or municipal election
officers, and allegedly constituting at least twelve per cent (12%) of all
registered voters in the country, wherein each legislative district is
represented by at least three per cent (3%) of all the registered voters
therein.
As basis for the filing of their petition for initiative, petitioners
averred that Section 5 (b) and (c), together with Section 7 of R.A.
6735, provide sufficient enabling details for the people's exercise
of the power. Hence, petitioners prayed that the COMELEC issue
an Order:
1. Finding the petition to be sufficient pursuant to Section 4,
Article XVII of the 1987 Constitution;
2. Directing the publication of the petition in Filipino and English
at least twice in newspapers of general and local circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later
than ninety days after the Certification by the COMELEC of the
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 sufficiency of the petition, to allow the Filipino people to express
their sovereign will on the proposition.
Several groups filed with the COMELEC their respective oppositions to
the petition for initiative, among them ONEVOICE, Inc., Christian S.
Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr.,
Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.,
Senate Minority Leader Aquilino Q. Pimentel, Jr., Senators Sergio Osmea
III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P.
Ejercito-Estrada, and Jinggoy Estrada; Representatives Loretta Ann P.
Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; Bayan,
Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela,
Gabriela Women's Party, Anakbayan, League of Filipino Students,
Leonardo San Jose, Jojo Pineda, Drs. Darby Santiago and Reginald
Pamugas; Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D.
Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C.
Tabayoyong.
On August 31, 2006, the COMELEC denied due course to the Petition for
Initiative. It cited this Court's ruling in Santiago v. COMELEC11 permanently
enjoining the Commission from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of
the system.
Forthwith, petitioners filed with this Court the instant Petition for
Certiorari and Mandamus praying that the Court set aside the August 31,
2006 resolution of the COMELEC, direct respondent COMELEC to comply
with Section 4, Article XVII of the Constitution, and set the date of the
plebiscite. They state the following grounds in support of the petition:
I.
The Honorable public respondent COMELEC committed grave
abuse of discretion in refusing to take cognizance of, and to give
due course to the petition for initiative, because the cited
Santiago ruling of 19 March 1997 cannot be considered the
majority opinion of the Supreme Court en banc, considering that
upon its reconsideration and final voting on 10 June 1997, no
majority vote was secured to declare Republic Act No. 6735 as
inadequate, incomplete and insufficient in standard.
II.
The 1987 Constitution, Republic Act No. 6735, Republic Act No.
8189 and existing appropriation of the COMELEC provide for
sufficient details and authority for the exercise of people's
initiative, thus, existing laws taken together are adequate and
complete.
III.
The Honorable public respondent COMELEC committed grave
abuse of discretion in refusing to take cognizance of, and in
refusing to give due course to the petition for initiative, thereby
violating an express constitutional mandate and disregarding and
contravening the will of the people.
A.
Assuming in arguendo that there is no enabling law,
respondent COMELEC cannot ignore the will of the
sovereign people and must accordingly act on the petition
for initiative.
1.
The framers of the Constitution intended to give
the people the power to propose amendments
and the people themselves are now giving vibrant
life to this constitutional provision.
2.
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 Prior to the questioned Santiago ruling of 19
March 1997, the right of the people to exercise
the sovereign power of initiative and recall has
been invariably upheld.
3.
The exercise of the initiative to propose
amendments is a political question which shall be
determined solely by the sovereign people.
4.
By signing the signature sheets attached to the
petition for initiative duly verified by the election
officers, the people have chosen to perform this
sacred exercise of their sovereign power.
B.
The Santiago ruling of 19 March 1997 is not applicable to
the instant petition for initiative filed by the petitioners.
C.
The permanent injunction issued in Santiago vs. COMELEC
only applies to the Delfin petition.
1.
It is the dispositive portion of the decision and not
other statements in the body of the decision that
governs the rights in controversy.
IV.
The Honorable public respondent failed or
neglected to act or perform a duty mandated by
law.
A.
The ministerial duty of the COMELEC is to
set the initiative for plebiscite.12
The oppositors-intervenors, ONEVOICE, Inc., Christian S. Monsod, Rene
B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and
Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Bayan, Kilusang Mayo
Uno, Ecumenical Bishops Forum, Migrante Gabriela, Gabriela Women's
Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo
Pineda, Dr. Darby Santiago, and Dr. Reginald Pamugas; Senate Minority
Leader Aquilino Q. Pimentel, Jr., and Senators Sergio Osmea III, Jamby
A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada,
and Jinggoy Estrada; Representatives Loretta Ann P. Rosales, Mario Joyo
Aguja, and Ana Theresia Hontiveros-Baraquel; and Attys. Pete Quirino-
Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat,
Antonio L. Salvador, and Randall C. Tabayoyong moved to intervene in
this case and filed their respective Oppositions/Comments-in-
Intervention.
The Philippine Constitution Association, Conrado F. Estrella, Tomas C.
Toledo, Mariano M. Tajon, Froilan M. Bacungan, Joaquin T. Venus, Jr.,
Fortunato P. Aguas, and Amado Gat Inciong; the Integrated Bar of the
Philippines Cebu City and Cebu Province Chapters; former President
Joseph Ejercito Estrada and Pwersa ng Masang Pilipino; and the Senate of
the Philippines, represented by Senate President Manuel Villar, Jr., also
filed their respective motions for intervention and Comments-in-
Intervention.
The Trade Union Congress of the Philippines, Sulongbayan Movement
Foundation, Inc., Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya,
Philippine Transport and General Workers Organization, and Victorino F.
Balais likewise moved to intervene and submitted to the Court a Petition-
300
in-Intervention. All interventions and oppositions were granted by the
Court.
The oppositors-intervenors essentially submit that the COMELEC did not
commit grave abuse of discretion in denying due course to the petition
for initiative as it merely followed this Court's ruling in Santiago v.
COMELEC as affirmed in the case of PIRMA v. COMELEC, based on the
principle of stare decisis; that there is no sufficient law providing for the
authority and the details for the exercise of people's initiative to amend
the Constitution; that the proposed changes to the Constitution are
actually revisions, not mere amendments; that the petition for initiative
does not meet the required number of signatories under Section 2, Article
XVII of the 1987 Constitution; that it was not shown that the people have
been informed of the proposed amendments as there was disparity
between the proposal presented to them and the proposed amendments
attached to the petition for initiative, if indeed there was; that the
verification process was done ex parte, thus rendering dubious the
signatures attached to the petition for initiative; and that petitioners
Lambino and Aumentado have no legal capacity to represent the
signatories in the petition for initiative.
The Office of the Solicitor General (OSG), in compliance with the Court's
resolution of September 5, 2006, filed its Comment to the petition.
Affirming the position of the petitioners, the OSG prayed that the Court
grant the petition at bar and render judgment: (1) declaring R.A. 6735 as
adequate to cover or as reasonably sufficient to implement the system of
initiative on amendments to the Constitution and as having provided
sufficient standards for subordinate legislation; (2) declaring as valid the
provisions of COMELEC Resolution No. 2300 on the conduct of initiative
or amendments to the Constitution; (3) setting aside the assailed
resolution of the COMELEC for having been rendered with grave abuse of
discretion amounting to lack or excess of jurisdiction; and, (4) directing
the COMELEC to grant the petition for initiative and set the
corresponding plebiscite pursuant to R.A. 6735, COMELEC Resolution No.
2300, and other pertinent election laws and regulations.
The COMELEC filed its own Comment stating that its resolution denying
the petition for initiative is not tainted with grave abuse of discretion as it
merely adhered to the ruling of this Court in Santiago v. COMELEC which
declared that R.A. 6735 does not adequately implement the
constitutional provision on initiative to amend the Constitution. It
invoked the permanent injunction issued by the Court against the
COMELEC from taking cognizance of petitions for initiative on
amendments to the Constitution until a valid enabling law shall have been
passed by Congress. It asserted that the permanent injunction covers not
only the Delfin Petition, but also all other petitions involving
constitutional initiatives.
On September 26, 2006, the Court heard the case. The parties were
required to argue on the following issues:13
1. Whether petitioners Lambino and Aumentado are proper
parties to file the present Petition in behalf of the more than six
million voters who allegedly signed the proposal to amend the
Constitution.
2. Whether the Petitions for Initiative filed before the Commission
on Elections complied with Section 2, Article XVII of the
Constitution.
3. Whether the Court's decision in Santiago v. COMELEC (G.R. No.
127325, March 19, 1997) bars the present petition.
4. Whether the Court should re-examine the ruling in Santiago v.
COMELEC that there is no sufficient law implementing or
authorizing the exercise of people's initiative to amend the
Constitution.
5. Assuming R.A. 6735 is sufficient, whether the Petitions for
Initiative filed with the COMELEC have complied with its
provisions.
5.1 Whether the said petitions are sufficient in form and
substance.
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 5.2 Whether the proposed changes embrace more than
one subject matter.
6. Whether the proposed changes constitute an amendment or
revision of the Constitution.
6.1 Whether the proposed changes are the proper subject
of an initiative.
7. Whether the exercise of an initiative to propose amendments
to the Constitution is a political question to be determined solely
by the sovereign people.
8. Whether the Commission on Elections committed grave abuse
of discretion in dismissing the Petitions for Initiative filed before
it.
With humility, I offer the following views to these issues as profiled:
I discretion amounting to lack or excess of jurisdiction, and there is
Petitioners Lambino and Aumentado are proper parties to file
the present Petition in behalf of the more than six million voters
who allegedly signed the proposal to amend the Constitution.
Oppositors-intervenors contend that petitioners Lambino and
Aumentado are not the proper parties to file the instant petition as they
were not authorized by the signatories in the petition for initiative.
The argument deserves scant attention. The Constitution requires that
the petition for initiative should be filed by at least twelve per cent (12%)
of all registered voters, of which every legislative district must be
represented by at least three per cent (3%) of all the registered voters
therein. The petition for initiative filed by Lambino and Aumentado
before the COMELEC was accompanied by voluminous signature sheets
which prima facie show the intent of the signatories to support the filing
of said petition. Stated above their signatures in the signature sheets is
the following:
x x x My signature herein which shall form part of the petition for
initiative to amend the Constitution signifies my support for the
filing thereof.14
There is thus no need for the more than six (6) million signatories to
execute separate documents to authorize petitioners to file the petition
for initiative in their behalf.
Neither is it necessary for said signatories to authorize Lambino and
Aumentado to file the petition for certiorari and mandamus before this
Court. Rule 65 of the 1997 Rules of Civil Procedure provides who may file
a petition for certiorari and mandamus. Sections 1 and 3 of Rule 65 read:
SECTION 1. Petition for certiorari.When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted
without or in excess of his jurisdiction, or with grave abuse of
no appeal, nor any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court x x x x.
SEC. 3. Petition for mandamus.When any tribunal, corporation,
board, officer or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty resulting from
an office, trust, or station x x x and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court
x x x x.
Thus, any person aggrieved by the act or inaction of the respondent
tribunal, board or officer may file a petition for certiorari or mandamus
before the appropriate court. Certainly, Lambino and Aumentado, as
among the proponents of the petition for initiative dismissed by the
COMELEC, have the standing to file the petition at bar.
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 II
The doctrine of stare decisis does not bar the reexamination of
Santiago.
The latin phrase stare decisis et non quieta movere means "stand by the
thing and do not disturb the calm." The doctrine started with the English
Courts.15 Blackstone observed that at the beginning of the 18th century,
"it is an established rule to abide by former precedents where the same
points come again in litigation."16 As the rule evolved, early limits to its
application were recognized: (1) it would not be followed if it were
"plainly unreasonable;" (2) where courts of equal authority developed
conflicting decisions; and, (3) the binding force of the decision was the
"actual principle or principles necessary for the decision; not the words or
reasoning used to reach the decision."17
The doctrine migrated to the United States. It was recognized by the
framers of the U.S. Constitution.18 According to Hamilton, "strict rules
and precedents" are necessary to prevent "arbitrary discretion in the
courts."19 Madison agreed but stressed that "x x x once the precedent
ventures into the realm of altering or repealing the law, it should be
rejected."20 Prof. Consovoy well noted that Hamilton and Madison
"disagree about the countervailing policy considerations that would
allow a judge to abandon a precedent."21 He added that their ideas
"reveal a deep internal conflict between the concreteness required by the
rule of law and the flexibility demanded in error correction. It is this
internal conflict that the Supreme Court has attempted to deal with for
over two centuries."22
Indeed, two centuries of American case law will confirm Prof. Consovoy's
observation although stare decisis developed its own life in the United
States. Two strains of stare decisis have been isolated by legal scholars.23
The first, known as vertical stare decisis deals with the duty of lower
courts to apply the decisions of the higher courts to cases involving the
same facts. The second, known as horizontal stare decisis requires that
high courts must follow its own precedents. Prof. Consovoy correctly
observes that vertical stare decisis has been viewed as an obligation,
while horizontal stare decisis, has been viewed as a policy, imposing
choice but not a command.24 Indeed, stare decisis is not one of the
precepts set in stone in our Constitution.
It is also instructive to distinguish the two kinds of horizontal stare decisis
constitutional stare decisis and statutory stare decisis.25 Constitutional
stare decisis involves judicial interpretations of the Constitution while
statutory stare decisis involves interpretations of statutes. The distinction
is important for courts enjoy more flexibility in refusing to apply stare
decisis in constitutional litigations. Justice Brandeis' view on the binding
effect of the doctrine in constitutional litigations still holds sway today. In
soothing prose, Brandeis stated: "Stare decisis is not . . . a universal and
inexorable command. The rule of stare decisis is not inflexible. Whether it
shall be followed or departed from, is a question entirely within the
discretion of the court, which is again called upon to consider a question
once decided."26 In the same vein, the venerable Justice Frankfurter
opined: "the ultimate touchstone of constitutionality is the Constitution
itself and not what we have said about it."27 In contrast, the application
of stare decisis on judicial interpretation of statutes is more inflexible. As
Justice Stevens explains: "after a statute has been construed, either by
this Court or by a consistent course of decision by other federal judges
and agencies, it acquires a meaning that should be as clear as if the
judicial gloss had been drafted by the Congress itself."28 This stance
reflects both respect for Congress' role and the need to preserve the
courts' limited resources.
In general, courts follow the stare decisis rule for an ensemble of
reasons,29 viz: (1) it legitimizes judicial institutions; (2) it promotes judicial
economy; and, (3) it allows for predictability. Contrariwise, courts refuse
to be bound by the stare decisis rule where30 (1) its application
perpetuates illegitimate and unconstitutional holdings; (2) it cannot
accommodate changing social and political understandings; (3) it leaves
the power to overturn bad constitutional law solely in the hands of
Congress; and, (4) activist judges can dictate the policy for future courts
while judges that respect stare decisis are stuck agreeing with them.
In its 200-year history, the U.S. Supreme Court has refused to follow the
stare decisis rule and reversed its decisions in 192 cases.31 The most
famous of these reversals is Brown v. Board of Education32 which junked
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Plessy v. Ferguson's33 "separate but equal doctrine." Plessy upheld as
constitutional a state law requirement that races be segregated on public
transportation. In Brown, the U.S. Supreme Court, unanimously held that
"separate . . . is inherently unequal." Thus, by freeing itself from the
shackles of stare decisis, the U.S. Supreme Court freed the colored
Americans from the chains of inequality. In the Philippine setting, this
Court has likewise refused to be straitjacketed by the stare decisis rule in
order to promote public welfare. In La Bugal-B'laan Tribal Association,
Inc. v. Ramos,34 we reversed our original ruling that certain provisions of
the Mining Law are unconstitutional. Similarly, in Secretary of Justice v.
Lantion,35 we overturned our first ruling and held, on motion for
reconsideration, that a private respondent is bereft of the right to notice
and hearing during the evaluation stage of the extradition process.
An examination of decisions on stare decisis in major countries will show
that courts are agreed on the factors that should be considered before
overturning prior rulings. These are workability, reliance, intervening
developments in the law and changes in fact. In addition, courts put in
the balance the following determinants: closeness of the voting, age of
the prior decision and its merits.36
The leading case in deciding whether a court should follow the stare
decisis rule in constitutional litigations is Planned Parenthood v. Casey.37
It established a 4-pronged test. The court should (1) determine whether
the rule has proved to be intolerable simply in defying practical
workability; (2) consider whether the rule is subject to a kind of reliance
that would lend a special hardship to the consequences of overruling and
add inequity to the cost of repudiation; (3) determine whether related
principles of law have so far developed as to have the old rule no more
than a remnant of an abandoned doctrine; and, (4) find out whether facts
have so changed or come to be seen differently, as to have robbed the
old rule of significant application or justification.
Following these guidelines, I submit that the stare decisis rule should not
bar the reexamination of Santiago. On the factor of intolerability, the six
(6) justices in Santiago held R.A. 6735 to be insufficient as it provided no
standard to guide COMELEC in issuing its implementing rules. The
Santiago ruling that R.A. 6735 is insufficient but without striking it down
as unconstitutional is an intolerable aberration, the only one of its kind in
our planet. It improperly assails the ability of legislators to write laws. It
usurps the exclusive right of legislators to determine how far laws
implementing constitutional mandates should be crafted. It is elementary
that courts cannot dictate on Congress the style of writing good laws,
anymore than Congress can tell courts how to write literate decisions.
The doctrine of separation of powers forbids this Court to invade the
exclusive lawmaking domain of Congress for courts can construe laws
but cannot construct them. The end result of the ruling of the six (6)
justices that R.A. 6735 is insufficient is intolerable for it rendered lifeless
the sovereign right of the people to amend the Constitution via an
initiative.
On the factor of reliance, the ruling of the six (6) justices in Santiago did
not induce any expectation from the people. On the contrary, the ruling
smothered the hope of the people that they could amend the
Constitution by direct action. Moreover, reliance is a non-factor in the
case at bar for it is more appropriate to consider in decisions involving
contracts where private rights are adjudicated. The case at bar involves
no private rights but the sovereignty of the people.
On the factor of changes in law and in facts, certain realities on ground
cannot be blinked away. The urgent need to adjust certain provisions of
the 1987 Constitution to enable the country to compete in the new
millennium is given. The only point of contention is the mode to effect
the change - - - whether through constituent assembly, constitutional
convention or people's initiative. Petitioners claim that they have
gathered over six (6) million registered voters who want to amend the
Constitution through people's initiative and that their signatures have
been verified by registrars of the COMELEC. The six (6) justices who ruled
that R.A. 6735 is insufficient to implement the direct right of the people
to amend the Constitution through an initiative cannot waylay the will
of 6.3 million people who are the bearers of our sovereignty and from
whom all government authority emanates. New developments in our
internal and external social, economic, and political settings demand the
reexamination of the Santiago case. The stare decisis rule is no reason for
this Court to allow the people to step into the future with a blindfold.
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 III
A reexamination of R.A. 6735 will show that it is sufficient to
implement the people's initiative.
Let us reexamine the validity of the view of the six (6) justices that R.A.
6735 is insufficient to implement Section 2, Article XVII of the 1987
Constitution allowing amendments to the Constitution to be directly
proposed by the people through initiative.
When laws are challenged as unconstitutional, courts are counseled to
give life to the intent of legislators. In enacting R.A. 6735, it is daylight
luminous that Congress intended the said law to implement the right of
the people, thru initiative, to propose amendments to the Constitution by
direct action. This all-important intent is palpable from the following:
First. The text of R.A. 6735 is replete with references to the right of the
people to initiate changes to the Constitution:
The policy statement declares:
Sec. 2. Statement of Policy. -- The power of the people under a
system of initiative and referendum to directly propose, enact,
approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed. (emphasis supplied)
It defines "initiative" as "the power of the people to propose
amendments to the Constitution or to propose and enact legislations
through an election called for the purpose," and "plebiscite" as "the
electoral process by which an initiative on the Constitution is approved
or rejected by the people."
It provides the requirements for a petition for initiative to amend the
Constitution, viz:
(1) That "(a) petition for an initiative on the 1987 Constitution
must have at least twelve per centum (12%) of the total number of
registered voters as signatories, of which every legislative district
must be represented by at least three per centum (3%) of the
registered voters therein;"38 and
(2) That "(i)nitiative on the Constitution may be exercised only
after five (5) years from the ratification of the 1987 Constitution
and only once every five (5) years thereafter."39
It fixes the effectivity date of the amendment under Section 9(b) which
provides that "(t)he proposition in an initiative on the Constitution
approved by a majority of the votes cast in the plebiscite shall become
effective as to the day of the plebiscite."
Second. The legislative history of R.A. 6735 also reveals the clear intent of
the lawmakers to use it as the instrument to implement people's
initiative. No less than former Chief Justice Hilario G. Davide, Jr., the
ponente in Santiago, concedes:40
We agree that R.A. No. 6735 was, as its history reveals, intended
to cover initiative to propose amendments to the Constitution.
The Act is a consolidation of House Bill No. 21505 and Senate Bill
No. 17 x x x x The Bicameral Conference Committee consolidated
Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which
was subsequently approved on 8 June 1989 by the Senate and by
the House of Representatives. This approved bill is now R.A. No.
6735.
Third. The sponsorship speeches by the authors of R.A. 6735 similarly
demonstrate beyond doubt this intent. In his sponsorship remarks, the
late Senator Raul Roco (then a Member of the House of Representatives)
emphasized the intent to make initiative as a mode whereby the people
can propose amendments to the Constitution. We quote his relevant
remarks:41
SPONSORSHIP REMAKRS OF REP. ROCO
305
MR. ROCO. Mr. Speaker, with the permission of the committee,
we wish to speak in support of House Bill No. 497, entitled:
INITIATIVE AND REFERENDUM ACT OF 1987, which later on may
be called Initiative and Referendum Act of 1989.
As a background, we want to point out the constitutional basis of
this particular bill. The grant of plenary legislative power upon the
Philippine Congress by the 1935, 1973 and 1987 Constitutions, Mr.
Speaker, was based on the principle that any power deemed to
be legislative by usage and tradition is necessarily possessed by
the Philippine Congress unless the Organic Act has lodged it
elsewhere. This was a citation from Vera vs. Avelino (1946).
The presidential system introduced by the 1935 Constitution saw
the application of the principle of separation of powers. While
under the parliamentary system of the 1973 Constitution the
principle remained applicable, Amendment 6 or the 1981
amendments to the 1973 Constitution ensured presidential
dominance over the Batasang Pambansa.
Our constitutional history saw the shifting and sharing of
legislative power between the legislature and the executive.
Transcending such changes in the exercise of legislative power is
the declaration in the Philippine Constitution that he Philippines is
a Republican State where sovereignty resides in the people and
all government authority emanates from them.
In a Republic, Mr. Speaker, the power to govern is vested in its
citizens participating through the right of suffrage and indicating
thereby their choice of lawmakers.
Under the 1987 Constitution, lawmaking power is still preserved
in Congress. However, to institutionalize direct action of the
people as exemplified in the 1986 Revolution, there is a practical
recognition of what we refer to as people's sovereign power. This
is the recognition of a system of initiative and referendum.
Section 1, Article VI of the 1987 Constitution provides, and I quote:
The legislative power shall be vested in the Congress of
the Philippines which shall consist of a Senate and House
of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum.
In other words, Mr. Speaker, under the 1987 Constitution,
Congress does not have plenary powers. There is a reserved
legislative power given to the people expressly.
Section 32, the implementing provision of the same article of the
Constitution provides, and I quote:
The Congress shall, as early as possible, provide for a
system of initiative and referendum, and the exceptions
therefrom, whereby the people can directly propose and
enact laws or approve or reject any act or law or part
thereof passed by the Congress or local legislative body
after the registration of a petition therefor signed by at
least ten per centum of the total number of registered
voters, or which every legislative district must be
represented by at least three per centum of the registered
voters thereof.
In other words, Mr. Speaker, in Section 1 of Article VI which
describes legislative power, there are reserved powers given to
the people. In Section 32, we are specifically told to pass at the
soonest possible time a bill on referendum and initiative. We are
specifically mandated to share the legislative powers of Congress
with the people.
Of course, another applicable provision in the Constitution is
Section 2, Article XVII, Mr. Speaker. Under the provision on
amending the Constitution, the section reads, and I quote:
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 Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition
of at least twelve per centum of the total number of
registered voters, of which every legislative district must
be represented by at least three per centum of the
registered voters therein. No amendment under this
section shall be authorized within five years following the
ratification of this Constitution nor oftener than once
every five years thereafter.
We in Congress therefore, Mr. Speaker, are charged with the duty
to implement the exercise by the people of the right of initiative
and referendum.
House Bill No. 21505, as reported out by the Committee on
Suffrage and Electoral Reforms last December 14, 1988, Mr.
Speaker, is the response to such a constitutional duty.
Mr. Speaker, if only to allay apprehensions, allow me to show
where initiative and referendum under Philippine law has
occurred.
Mr. Speaker, the system of initiative and referendum is not new.
In a very limited extent, the system is provided for in our Local
Government Code today. On initiative, for instance, Section 99 of
the said code vests in the barangay assembly the power to initiate
legislative processes, to hold plebiscites and to hear reports of
the sangguniang barangay. There are variations of initiative and
referendum. The barangay assembly is composed of all persons
who have been actual residents of the barangay for at least six
months, who are at least 15 years of age and citizens of the
Philippines. The holding of barangay plebiscites and referendum
is also provided in Sections 100 and 101 of the same Code.
Mr. Speaker, for brevity I will not read the pertinent quotations
but will just submit the same to the Secretary to be incorporated
as part of my speech.
To continue, Mr. Speaker these same principles are extensively
applied by the Local Government Code as it is now mandated by
the 1987 Constitution.
In other jurisdictions, Mr. Speaker, we have ample examples of
initiative and referendum similar to what is now contained in
House Bill No. 21505. As in the 1987 Constitutions and House Bill
No. 21505, the various constitutions of the states in the United
States recognize the right of registered voters to initiate the
enactment of any statute or to reject any existing law or parts
thereof in a referendum. These states are Alaska, Alabama,
Montana, Massachusetts, Dakota, Oklahoma, Oregon, and
practically all other states.
In certain American states, the kind of laws to which initiative and
referendum applies is also without ay limitation, except for
emergency measures, which is likewise incorporated in Section
7(b) of House Bill No. 21505.
The procedure provided by the House bill from the filing of the
petition, the requirement of a certain percentage of supporters to
present a proposition to submission to electors is substantially
similar to those of many American laws. Mr. Speaker, those
among us who may have been in the United States, particularly in
California, during election time or last November during the
election would have noticed different propositions posted in the
city walls. They were propositions submitted by the people for
incorporation during the voting. These were in the nature of
initiative, Mr. Speaker.
Although an infant then in Philippine political structure, initiative
and referendum is a tried and tested system in other jurisdictions,
and House Bill No. 21505 through the various consolidated bills is
patterned after American experience in a great respect.
What does the bill essentially say, Mr. Speaker? Allow me to try to
bring our colleagues slowly through the bill. The bill has basically
only 12 sections. The constitutional Commissioners, Mr. Speaker,
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saw this system of initiative and referendum as an instrument
which can be used should the legislature show itself indifferent to
the needs of the people. That is why, Mr. Speaker, it may be
timely, since we seem to be amply criticized, as regards our
responsiveness, to pass this bill on referendum and initiative now.
While indifference would not be an appropriate term to use at
this time, and surely it is not the case although we are so
criticized, one must note that it is a felt necessity of our times that
laws need to be proposed and adopted at the soonest possible
time to spur economic development, safeguard individual rights
and liberties, and share governmental power with the people.
With the legislative powers of the President gone, we alone,
together with the Senators when they are minded to agree with
us, are left with the burden of enacting the needed legislation.
Let me now bring our colleagues, Mr. Speaker, to the process
advocated by the bill.
First, initiative and referendum, Mr. Speaker, is defined. Initiative
essentially is what the term connotes. It means that the people,
on their own political judgment, submit fore the consideration
and voting of the general electorate a bill or a piece of legislation.
Under House Bill No. 21505, there are three kinds of initiative. One
is an initiative to amend the Constitution. This can occur once
every five years. Another is an initiative to amend statutes that
we may have approved. Had this bill been an existing law, Mr.
Speaker, it is most likely that an overwhelming majority of the
barangays in the Philippines would have approved by initiative the
matter of direct voting.
The third mode of initiative, Mr. Speaker, refers to a petition
proposing to enact regional, provincial, city, municipal or
barangay laws or ordinances. It comes from the people and it
must be submitted directly to the electorate. The bill gives a
definite procedure and allows the COMELEC to define rules and
regulations to give teeth to the power of initiative.
On the other hand, referendum, Mr. Speaker, is the power of the
people to approve or reject something that Congress has already
approved.
For instance, Mr. Speaker, when we divide the municipalities or
the barangays into two or three, we must first get the consent of
the people affected through plebiscite or referendum.
Referendum is a mode of plebiscite, Mr. Speaker. However,
referendum can also be petitioned by the people if, for instance,
they do not life the bill on direct elections and it is approved
subsequently by the Senate. If this bill had already become a law,
then the people could petition that a referendum be conducted
so that the acts of Congress can be appropriately approved or
rebuffed.
The initial stage, Mr. Speaker, is what we call the petition. As
envisioned in the bill, the initiative comes from the people, from
registered voters of the country, by presenting a proposition so
that the people can then submit a petition, which is a piece of
paper that contains the proposition. The proposition in the
example I have been citing is whether there should be direct
elections during the barangay elections. So the petition must be
filed in the appropriate agency and the proposition must be clear
stated. It can be tedious but that is how an effort to have direct
democracy operates.
Section 4 of the bill gives requirements, Mr. Speaker. It will not be
all that easy to have referendum or initiative petitioned by the
people. Under Section 4 of the committee report, we are given
certain limitations. For instance, to exercise the power of
initiative or referendum, at least 10 percent of the total number of
registered voters, of which every legislative district is represented
by at least 3 percent of the registered voters thereof, shall sign a
petition. These numbers, Mr. Speaker, are not taken from the air.
They are mandated by the Constitution. There must be a
requirement of 10 percent for ordinary laws and 3 percent
representing all districts. The same requirement is mutatis
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mutandis or appropriately modified and applied to the different
sections. So if it is, for instance, a petition on initiative or
referendum for a barangay, there is a 10 percent or a certain
number required of the voters of the barangay. If it is for a
district, there is also a certain number required of all towns of the
district that must seek the petition. If it is for a province then
again a certain percentage of the provincial electors is required.
All these are based with reference to the constitutional mandate.
The conduct of the initiative and referendum shall be supervised
and shall be upon the call of the Commission on Elections.
However, within a period of 30 days from receipt of the petition,
the COMELEC shall determine the sufficiency of the petition,
publish the same and set the date of the referendum which shall
not be earlier than 45 days but not later than 90 days from the
determination by the commission of the sufficiency of the
petition. Why is this so, Mr. Speaker? The petition must first be
determined by the commission as to its sufficiency because our
Constitution requires that no bill can be approved unless it
contains one subject matter. It is conceivable that in the fervor of
an initiative or referendum, Mr. Speaker, there may be more than
two topics sought to be approved and that cannot be allowed. In
fact, that is one of the prohibitions under this referendum and
initiative bill. When a matter under initiative or referendum is
approved by the required number of votes, Mr. Speaker, it shall
become effective 15 days following the completion of its
publication in the Official Gazette. Effectively then, Mr. Speaker,
all the bill seeks to do is to enlarge and recognize the legislative
powers of the Filipino people.
Mr. Speaker, I think this Congress, particularly this House, cannot
ignore or cannot be insensitive to the call for initiative and
referendum. We should have done it in 1987 but that is past.
Maybe we should have done it in 1988 but that too had already
passed, but it is only February 1989, Mr. Speaker, and we have
enough time this year at least to respond to the need of our
people to participate directly in the work of legislation.
For these reasons, Mr. Speaker, we urge and implore our
colleagues to approve House Bill No. 21505 as incorporated in
Committee Report No. 423 of the Committee on Suffrage and
Electoral Reforms.
In closing, Mr. Speaker, I also request that the prepared text of
my speech, together with the footnotes since they contain many
references to statutory history and foreign jurisdiction, be
reproduced as part of the Record for future purposes.
Equally unequivocal on the intent of R.A. 6735 is the sponsorship speech
of former Representative Salvador Escudero III, viz:42
SPONSORSHIP REMARKS OF REP. ESCUDERO
MR. ESCUDERO. Thank you, Mr. Speaker.
Mr. Speaker and my dear colleagues: Events in recent years
highlighted the need to heed the clamor of the people for a truly
popular democracy. One recalls the impatience of those who
actively participated in the parliament of the streets, some of
whom are now distinguished Members of this Chamber. A
substantial segment of the population feel increasingly that under
the system, the people have the form but not the reality or
substance of democracy because of the increasingly elitist
approach of their chosen Representatives to many questions
vitally affecting their lives. There have been complaints, not
altogether unfounded, that many candidates easily forge their
campaign promises to the people once elected to office. The 1986
Constitutional Commission deemed it wise and proper to provide
for a means whereby the people can exercise the reserve power
to legislate or propose amendments to the Constitution directly
in case their chose Representatives fail to live up to their
expectations. That reserve power known as initiative is explicitly
recognized in three articles and four sections of the 1987
Constitution, namely: Article VI Section 1; the same article, Section
312; Article X, Section 3; and Article XVII, Section 2. May I request
309
that he explicit provisions of these three articles and four sections
be made part of my sponsorship speech, Mr. Speaker.
These constitutional provisions are, however, not self-executory.
There is a need for an implementing law that will give meaning
and substance to the process of initiative and referendum which
are considered valuable adjuncts to representative democracy. It
is needless to state that this bill when enacted into law will
probably open the door to strong competition of the people, like
pressure groups, vested interests, farmers' group, labor groups,
urban dwellers, the urban poor and the like, with Congress in the
field of legislation.
Such probability, however, pales in significance when we consider
that through this bill we can hasten the politization of the Filipino
which in turn will aid government in forming an enlightened
public opinion, and hopefully produce better and more
responsive and acceptable legislations.
Furthermore, Mr. Speaker, this would give the parliamentarians
of the streets and cause-oriented groups an opportunity to
articulate their ideas in a truly democratic forum, thus, the
competition which they will offer to Congress will hopefully be a
healthy one. Anyway, in an atmosphere of competition there are
common interests dear to all Filipinos, and the pursuit of each
side's competitive goals can still take place in an atmosphere of
reason and moderation.
Mr. Speaker and my dear colleagues, when the distinguished
Gentleman from Camarines Sur and this Representation filed our
respective versions of the bill in 1987, we were hoping that the bill
would be approved early enough so that our people could
immediately use the agrarian reform bill as an initial subject
matter or as a take-off point.
However, in view of the very heavy agenda of the Committee on
Local Government, it took sometime before the committee could
act on these. But as they say in Tagalog, huli man daw at magaling
ay naihahabol din. The passage of this bill therefore, my dear
colleagues, could be one of our finest hours when we can set
aside our personal and political consideration for the greater
good of our people. I therefore respectfully urge and plead that
this bill be immediately approved.
Thank you, Mr. Speaker.
We cannot dodge the duty to give effect to this intent for the "[c]ourts
have the duty to interpret the law as legislated and when possible, to
honor the clear meaning of statutes as revealed by its language, purpose
and history."43
The tragedy is that while conceding this intent, the six (6) justices,
nevertheless, ruled that "x x x R.A. No. 6735 is incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned" for the following reasons:
(1) Section 2 of the Act does not suggest an initiative on amendments to
the Constitution; (2) the Act does not provide for the contents of the
petition for initiative on the Constitution; and (3) while the Act provides
subtitles for National Initiative and Referendum (Subtitle II) and for Local
Initiative and Referendum (Subtitle III), no subtitle is provided for
initiative on the Constitution.
To say the least, these alleged omissions are too weak a reason to
throttle the right of the sovereign people to amend the Constitution
through initiative. R.A. 6735 clearly expressed the legislative policy for
the people to propose amendments to the Constitution by direct action.
The fact that the legislature may have omitted certain details in
implementing the people's initiative in R.A. 6735, does not justify the
conclusion that, ergo, the law is insufficient. What were omitted were
mere details and not fundamental policies which Congress alone can and
has determined. Implementing details of a law can be delegated to the
COMELEC and can be the subject of its rule-making power. Under Section
2(1), Article IX-C of the Constitution, the COMELEC has the power to
enforce and administer all laws and regulations relative to the conduct of
initiatives. Its rule-making power has long been recognized by this Court.
In ruling R.A. 6735 insufficient but without striking it down as
310
unconstitutional, the six (6) justices failed to give due recognition to the
indefeasible right of the sovereign people to amend the Constitution.
IV
The proposed constitutional changes, albeit substantial, are
mere amendments and can be undertaken through people's
initiative.
Oppositors-intervenors contend that Sections 1 and 2, Article XVII of the
1987 Constitution, only allow the use of people's initiative to amend and
not to revise the Constitution. They theorize that the changes proposed
by petitioners are substantial and thus constitute a revision which cannot
be done through people's initiative.
In support of the thesis that the Constitution bars the people from
proposing substantial amendments amounting to revision, the
oppositors-intervenors cite the following deliberations during the
Constitutional Commission, viz:44
MR. SUAREZ: x x x x This proposal was suggested on the theory
that this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from
the traditional modes of amending the Constitution as embodied
in Section 1. The Committee members felt that this system of
initiative should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of
the proposed Article on Amendment or Revision.
xxxxxxxxxxxx
MS. AQUINO. In which case, I am seriously bothered by providing
this process of initiative as a separate section in the Article on
Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another
separate section as if it were a self-executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified
a while ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the
sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to
include the process of revision; whereas the process of initiation
to amend, which is given to the public, would only apply to
amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in
the Committee.
Commissioner (later Chief Justice) Hilario G. Davide, Jr., espoused the
same view:45
MR. DAVIDE. x x x x We are limiting the right of the people, by
initiative, to submit a proposal for amendment only, not for
revision, only once every five years x x x x
MR. MAAMBONG. My first question: Commissioner Davide's
proposed amendment on line 1 refers to "amendment." Does it
cover the word "revision" as defined by Commissioner Padilla
when he made the distinction between the words "amendments"
and "revision?"
MR. DAVIDE. No, it does not, because "amendments" and
"revision" should be covered by Section 1. So insofar as initiative
is concerned, it can only relate to "amendments" not "revision."
Commissioner (now a distinguished Associate Justice of this Court)
Adolfo S. Azcuna also clarified this point46 -
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 MR. OPLE. To more closely reflect the intent of Section 2, may I
suggest that we add to "Amendments" "OR REVISIONS OF" to
read: "Amendments OR REVISION OF this Constitution."
MR. AZCUNA. I think it was not allowed to revise the Constitution
by initiative.
MR. OPLE. How is that again?
MR. AZCUNA. It was not our intention to allow a revision of the
Constitution by initiative but merely by amendments.
MR. BENGZON. Only by amendments.
MR. AZCUNA. I remember that was taken on the floor.
MR. RODRIGO. Yes, just amendments.
The oppositors-intervenors then point out that by their proposals,
petitioners will "change the very system of government from presidential
to parliamentary, and the form of the legislature from bicameral to
unicameral," among others. They allegedly seek other major revisions like
the inclusion of a minimum number of inhabitants per district, a change in
the period for a term of a Member of Parliament, the removal of the
limits on the number of terms, the election of a Prime Minister who shall
exercise the executive power, and so on and so forth.47 In sum,
oppositors-intervenors submit that "the proposed changes to the
Constitution effect major changes in the political structure and system,
the fundamental powers and duties of the branches of the government,
the political rights of the people, and the modes by which political rights
may be exercised."48 They conclude that they are substantial
amendments which cannot be done through people's initiative. In other
words, they posit the thesis that only simple but not substantial
amendments can be done through people's initiative.
With due respect, I disagree. To start with, the words "simple" and
"substantial" are not subject to any accurate quantitative or qualitative
test. Obviously, relying on the quantitative test, oppositors-intervenors
assert that the amendments will result in some one hundred (100)
changes in the Constitution. Using the same test, however, it is also
arguable that petitioners seek to change basically only two (2) out of the
eighteen (18) articles of the 1987 Constitution, i.e. Article VI (Legislative
Department) and Article VII (Executive Department), together with the
complementary provisions for a smooth transition from a presidential
bicameral system to a parliamentary unicameral structure. The big bulk of
the 1987 Constitution will not be affected including Articles I (National
Territory), II (Declaration of Principles and State Policies), III (Bill of
Rights), IV (Citizenship), V (Suffrage), VIII (Judicial Department), IX
(Constitutional Commissions), X (Local Government), XI (Accountability
of Public Officers), XII (National Economy and Patrimony), XIII (Social
Justice and Human Rights), XIV (Education, Science and Technology, Arts,
Culture, and Sports), XV (The Family), XVI (General Provisions), and even
XVII (Amendments or Revisions). In fine, we stand on unsafe ground if
we use simple arithmetic to determine whether the proposed changes
are "simple" or "substantial."
Nor can this Court be surefooted if it applies the qualitative test to
determine whether the said changes are "simple" or "substantial" as to
amount to a revision of the Constitution. The well-regarded political
scientist, Garner, says that a good constitution should contain at least
three (3) sets of provisions: the constitution of liberty which sets forth
the fundamental rights of the people and imposes certain limitations on
the powers of the government as a means of securing the enjoyment of
these rights; the constitution of government which deals with the
framework of government and its powers, laying down certain rules for
its administration and defining the electorate; and, the constitution of
sovereignty which prescribes the mode or procedure for amending or
revising the constitution.49 It is plain that the proposed changes will
basically affect only the constitution of government. The constitutions
of liberty and sovereignty remain unaffected. Indeed, the proposed
changes will not change the fundamental nature of our state as "x x x a
democratic and republican state."50 It is self-evident that a unicameral-
parliamentary form of government will not make our State any less
democratic or any less republican in character. Hence, neither will the use
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of the qualitative test resolve the issue of whether the proposed
changes are "simple" or "substantial."
For this reason and more, our Constitutions did not adopt any
quantitative or qualitative test to determine whether an "amendment"
is "simple" or "substantial." Nor did they provide that "substantial"
amendments are beyond the power of the people to propose to change
the Constitution. Instead, our Constitutions carried the traditional
distinction between "amendment" and "revision," i.e., "amendment"
means change, including complex changes while "revision" means
complete change, including the adoption of an entirely new covenant.
The legal dictionaries express this traditional difference between
"amendment" and "revision." Black's Law Dictionary defines
"amendment" as "[a] formal revision or addition proposed or made to a
statute, constitution, pleading, order, or other instrument; specifically, a
change made by addition, deletion, or correction."51 Black's also refers to
"amendment" as "the process of making such a revision."52 Revision, on
the other hand, is defined as "[a] reexamination or careful review for
correction or improvement."53 In parliamentary law, it is described as "[a]
general and thorough rewriting of a governing document, in which the
entire document is open to amendment."54 Similarly, Ballentine's Law
Dictionary defines "amendment" as "[a] correction or revision of a
writing to correct errors or better to state its intended purpose"55 and
"amendment of constitution" as "[a] process of proposing, passing, and
ratifying amendments to the x x x constitution."56 In contrast, "revision,"
when applied to a statute (or constitution), "contemplates the re-
examination of the same subject matter contained in the statute (or
constitution), and the substitution of a new, and what is believed to be, a
still more perfect rule."57
One of the most authoritative constitutionalists of his time to whom we
owe a lot of intellectual debt, Dean Vicente G. Sinco, of the University of
the Philippines College of Law, (later President of the U.P. and delegate
to the Constitutional Convention of 1971) similarly spelled out the
difference between "amendment" and "revision." He opined: "the
revision of a constitution, in its strict sense, refers to a consideration of
the entire constitution and the procedure for effecting such change;
while amendment refers only to particular provisions to be added to or to
be altered in a constitution."58
Our people were guided by this traditional distinction when they
effected changes in our 1935 and 1973 Constitutions. In 1940, the changes
to the 1935 Constitution which included the conversion from a
unicameral system to a bicameral structure, the shortening of the tenure
of the President and Vice-President from a six-year term without
reelection to a four-year term with one reelection, and the establishment
of the COMELEC, together with the complementary constitutional
provisions to effect the changes, were considered amendments only, not
a revision.
The replacement of the 1935 Constitution by the 1973 Constitution was,
however, considered a revision since the 1973 Constitution was "a
completely new fundamental charter embodying new political, social and
economic concepts."59 Among those adopted under the 1973 Constitution
were: the parliamentary system in place of the presidential system, with
the leadership in legislation and administration vested with the Prime
Minister and his Cabinet; the reversion to a single-chambered lawmaking
body instead of the two-chambered, which would be more suitable to a
parliamentary system of government; the enfranchisement of the youth
beginning eighteen (18) years of age instead of twenty-one (21), and the
abolition of literacy, property, and other substantial requirements to
widen the basis for the electorate and expand democracy; the
strengthening of the judiciary, the civil service system, and the
Commission on Elections; the complete nationalization of the ownership
and management of mass media; the giving of control to Philippine
citizens of all telecommunications; the prohibition against alien
individuals to own educational institutions, and the strengthening of the
government as a whole to improve the conditions of the masses.60
The 1973 Constitution in turn underwent a series of significant changes in
1976, 1980, 1981, and 1984. The two significant innovations introduced in
1976 were (1) the creation of an interim Batasang Pambansa, in place of
the interim National Assembly, and (2) Amendment No. 6 which
conferred on the President the power to issue decrees, orders, or letters
of instruction, whenever the Batasang Pambansa fails to act adequately
313
on any matter for any reason that in his judgment requires immediate
action, or there is grave emergency or threat or imminence thereof, with
such decrees, or letters of instruction to form part of the law of the land.
In 1980, the retirement age of seventy (70) for justices and judges was
restored. In 1981, the presidential system with parliamentary features was
installed. The transfer of private land for use as residence to natural-born
citizens who had lost their citizenship was also allowed. Then, in 1984, the
membership of the Batasang Pambansa was reapportioned by provinces,
cities, or districts in Metro Manila instead of by regions; the Office of the
Vice-President was created while the executive committee was abolished;
and, urban land reform and social housing programs were
strengthened.61 These substantial changes were simply considered as
mere amendments.
In 1986, Mrs. Corazon C. Aquino assumed the presidency, and repudiated
the 1973 Constitution. She governed under Proclamation No. 3, known as
the Freedom Constitution.
In February 1987, the new constitution was ratified by the people in a
plebiscite and superseded the Provisional or Freedom Constitution.
Retired Justice Isagani Cruz underscored the outstanding features of the
1987 Constitution which consists of eighteen articles and is excessively
long compared to the Constitutions of 1935 and 1973, on which it was
largely based. Many of the original provisions of the 1935 Constitution,
particularly those pertaining to the legislative and executive
departments, have been restored because of the revival of the bicameral
Congress of the Philippines and the strictly presidential system. The
independence of the judiciary has been strengthened, with new
provisions for appointment thereto and an increase in its authority, which
now covers even political questions formerly beyond its jurisdiction.
While many provisions of the 1973 Constitution were retained, like those
on the Constitutional Commissions and local governments, still the new
1987 Constitution was deemed as a revision of the 1973 Constitution.
It is now contended that this traditional distinction between amendment
and revision was abrogated by the 1987 Constitution. It is urged that
Section 1 of Article XVII gives the power to amend or revise to Congress
acting as a constituent assembly, and to a Constitutional Convention duly
called by Congress for the purpose. Section 2 of the same Article, it is
said, limited the people's right to change the Constitution via initiative
through simple amendments. In other words, the people cannot propose
substantial amendments amounting to revision.
With due respect, I do not agree. As aforestated, the oppositors-
intervenors who peddle the above proposition rely on the opinions of
some Commissioners expressed in the course of the debate on how to
frame the amendment/revision provisions of the 1987 Constitution. It is
familiar learning, however, that opinions in a constitutional convention,
especially if inconclusive of an issue, are of very limited value as
explaining doubtful phrases, and are an unsafe guide (to the intent of the
people) since the constitution derives its force as a fundamental law, not
from the action of the convention but from the powers (of the people)
who have ratified and adopted it.62 "Debates in the constitutional
convention 'are of value as showing the views of the individual members,
and as indicating the reasons for their votes, but they give us no light as
to the views of the large majority who did not talk, much less of the
mass of our fellow citizens whose votes at the polls gave that instrument
the force of fundamental law.'"63 Indeed, a careful perusal of the debates
of the Constitutional Commissioners can likewise lead to the conclusion
that there was no abandonment of the traditional distinction between
"amendment" and "revision." For during the debates, some of the
commissioners referred to the concurring opinion of former Justice Felix
Q. Antonio in Javellana v. The Executive Secretary,64 that stressed the
traditional distinction between amendment and revision, thus:65
MR. SUAREZ: We mentioned the possible use of only one term
and that is, "amendment." However, the Committee finally
agreed to use the terms "amendment" or "revision" when our
attention was called by the honorable Vice-President to the
substantial difference in the connotation and significance
between the said terms. As a result of our research, we came up
with the observations made in the famous or notorious
Javellana doctrine, particularly the decision rendered by
Honorable Justice Makasiar,66 wherein he made the following
distinction between "amendment" and "revision" of an existing
Constitution: "Revision" may involve a rewriting of the whole
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 Constitution. On the other hand, the act of amending a
constitution envisages a change of specific provisions only. The
intention of an act to amend is not the change of the entire
Constitution, but only the improvement of specific parts or the
addition of provisions deemed essential as a consequence of new
conditions or the elimination of parts already considered obsolete
or unresponsive to the needs of the times.
The 1973 Constitution is not a mere amendment to the 1935
Constitution. It is a completely new fundamental Charter
embodying new political, social and economic concepts.
So, the Committee finally came up with the proposal that these
two terms should be employed in the formulation of the Article
governing amendments or revisions to the new Constitution.
To further explain "revision," former Justice Antonio, in his concurring
opinion, used an analogy "When a house is completely demolished and
another is erected on the same location, do you have a changed, repaired
and altered house, or do you have a new house? Some of the material
contained in the old house may be used again, some of the rooms may be
constructed the same, but this does not alter the fact that you have
altogether another or a new house."67
Hence, it is arguable that when the framers of the 1987 Constitution used
the word "revision," they had in mind the "rewriting of the whole
Constitution," or the "total overhaul of the Constitution." Anything less
is an "amendment" or just "a change of specific provisions only," the
intention being "not the change of the entire Constitution, but only the
improvement of specific parts or the addition of provisions deemed
essential as a consequence of new conditions or the elimination of parts
already considered obsolete or unresponsive to the needs of the times."
Under this view, "substantial" amendments are still "amendments" and
thus can be proposed by the people via an initiative.
As we cannot be guided with certainty by the inconclusive opinions of
the Commissioners on the difference between "simple" and "substantial"
amendments or whether "substantial" amendments amounting to
revision are covered by people's initiative, it behooves us to follow the
cardinal rule in interpreting Constitutions, i.e., construe them to give
effect to the intention of the people who adopted it. The illustrious
Cooley explains its rationale well, viz:68
x x x the constitution does not derive its force from the
convention which framed, but from the people who ratified it, the
intent to be arrived at is that of the people, and it is not to be
supposed that they have looked for any dark or abstruse meaning
in the words employed, but rather that they have accepted them
in the sense most obvious to the common understanding, and
ratified the instrument in the belief that that was the sense
designed to be conveyed. These proceedings therefore are less
conclusive of the proper construction of the instrument than are
legislative proceedings of the proper construction of a statute;
since in the latter case it is the intent of the legislature we seek,
while in the former we are endeavoring to arrive at the intent of
the people through the discussion and deliberations of their
representatives. The history of the calling of the convention, the
causes which led to it, and the discussions and issues before the
people at the time of the election of the delegates, will
sometimes be quite as instructive and satisfactory as anything to
be gathered form the proceedings of the convention.
Corollarily, a constitution is not to be interpreted on narrow or technical
principles, but liberally and on broad general lines, to accomplish the
object of its establishment and carry out the great principles of
government not to defeat them.69 One of these great principles is the
sovereignty of the people.
Let us now determine the intent of the people when they adopted
initiative as a mode to amend the 1987 Constitution. We start with the
Declaration of Principles and State Policies which Sinco describes as "the
basic political creed of the nation"70 as it "lays down the policies that
government is bound to observe."71 Section 1, Article II of the 1935
Constitution and Section 1, Article II of the 1973 Constitution, similarly
provide that "the Philippines is a republican state. Sovereignty resides in
the people and all government authority emanates from them." In a
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republican state, the power of the sovereign people is exercised and
delegated to their representatives. Thus in Metropolitan Transportation
Service v. Paredes, this Court held that "a republican state, like the
Philippines x x x (is) derived from the will of the people themselves in
freely creating a government 'of the people, by the people, and for the
people' a representative government through which they have agreed
to exercise the powers and discharge the duties of their sovereignty for
the common good and general welfare."72
In both the 1935 and 1973 Constitutions, the sovereign people delegated
to Congress or to a convention, the power to amend or revise our
fundamental law. History informs us how this delegated power to
amend or revise the Constitution was abused particularly during the
Marcos regime. The Constitution was changed several times to satisfy the
power requirements of the regime. Indeed, Amendment No. 6 was
passed giving unprecedented legislative powers to then President
Ferdinand E. Marcos. A conspiracy of circumstances from above and
below, however, brought down the Marcos regime through an extra
constitutional revolution, albeit a peaceful one by the people. A main
reason for the people's revolution was the failure of the representatives
of the people to effectuate timely changes in the Constitution either by
acting as a constituent assembly or by calling a constitutional
convention. When the representatives of the people defaulted in using
this last peaceful process of constitutional change, the sovereign people
themselves took matters in their own hands. They revolted and replaced
the 1973 Constitution with the 1987 Constitution.
It is significant to note that the people modified the ideology of the 1987
Constitution as it stressed the power of the people to act directly in
their capacity as sovereign people. Correspondingly, the power of the
legislators to act as representatives of the people in the matter of
amending or revising the Constitution was diminished for the spring
cannot rise above its source. To reflect this significant shift, Section 1,
Article II of the 1987 Constitution was reworded. It now reads: "the
Philippines is a democratic and republican state. Sovereignty resides in
the people and all government authority emanates from them." The
commissioners of the 1986 Constitutional Commission explained the
addition of the word "democratic," in our first Declaration of Principles,
viz:
MR. NOLLEDO. I am putting the word "democratic" because of the
provisions that we are now adopting which are covering consultations
with the people. For example, we have provisions on recall, initiative, the
right of the people even to participate in lawmaking and other instances
that recognize the validity of interference by the people through people's
organizations x x x x73
MR. OPLE. x x x x The Committee added the word "democratic"
to "republican," and, therefore, the first sentence states: "The
Philippines is a republican and democratic state x x x x
May I know from the committee the reason for adding the word
"democratic" to "republican"? The constitutional framers of the
1935 and 1973 Constitutions were content with "republican." Was
this done merely for the sake of emphasis?
MR. NOLLEDO. x x x x "democratic" was added because of the
need to emphasize people power and the many provisions in the
Constitution that we have approved related to recall, people's
organizations, initiative and the like, which recognize the
participation of the people in policy-making in certain
circumstances x x x x
MR. OPLE. I thank the Commissioner. That is a very clear answer
and I think it does meet a need x x x x
MR. NOLLEDO. According to Commissioner Rosario Braid,
"democracy" here is understood as participatory democracy. 74
(emphasis supplied)
The following exchange between Commissioners Rene V. Sarmiento and
Adolfo S. Azcuna is of the same import:75
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 MR. SARMIENTO. When we speak of republican democratic state,
are we referring to representative democracy?
MR. AZCUNA. That is right.
MR. SARMIENTO. So, why do we not retain the old formulation
under the 1973 and 1935 Constitutions which used the words
"republican state" because "republican state" would refer to a
democratic state where people choose their representatives?
MR. AZCUNA. We wanted to emphasize the participation of the
people in government.
MR. SARMIENTO. But even in the concept "republican state," we
are stressing the participation of the people x x x x So the word
"republican" will suffice to cover popular representation.
MR. AZCUNA. Yes, the Commissioner is right. However, the
committee felt that in view of the introduction of the aspects of
direct democracy such as initiative, referendum or recall, it was
necessary to emphasize the democratic portion of republicanism,
of representative democracy as well. So, we want to add the
word "democratic" to emphasize that in this new Constitution
there are instances where the people would act directly, and not
through their representatives. (emphasis supplied)
Consistent with the stress on direct democracy, the systems of initiative,
referendum, and recall were enthroned as polestars in the 1987
Constitution. Thus, Commissioner Blas F. Ople who introduced the
provision on people's initiative said:76
MR. OPLE. x x x x I think this is just the correct time in history
when we should introduce an innovative mode of proposing
amendments to the Constitution, vesting in the people and their
organizations the right to formulate and propose their own
amendments and revisions of the Constitution in a manner that
will be binding upon the government. It is not that I believe this
kind of direct action by the people for amending a constitution
will be needed frequently in the future, but it is good to know
that the ultimate reserves of sovereign power still rest upon the
people and that in the exercise of that power, they can propose
amendments or revision to the Constitution. (emphasis supplied)
Commissioner Jose E. Suarez also explained the people's initiative as a
safety valve, as a peaceful way for the people to change their
Constitution, by citing our experiences under the Marcos government,
viz:77
MR. SUAREZ. We agree to the difficulty in implementing this
particular provision, but we are providing a channel for the
expression of the sovereign will of the people through this
initiative system.
MR. BENGZON. Is Section 1, paragraphs (a) and (b), not sufficient
channel for expression of the will of the people, particularly in the
amendment or revision of the Constitution?
MR. SUAREZ. Under normal circumstances, yes. But we know
what happened during the 20 years under the Marcos
administration. So, if the National Assembly, in a manner of
speaking, is operating under the thumb of the Prime Minister or
the President as the case may be, and the required number of
votes could not be obtained, we would have to provide for a
safety valve in order that the people could ventilate in a very
peaceful way their desire for amendment to the Constitution.
It is very possible that although the people may be pressuring
the National Assembly to constitute itself as a constituent
assembly or to call a constitutional convention, the members
thereof would not heed the people's desire and clamor. So this is
a third avenue that we are providing for the implementation of
what is now popularly known as people's power. (emphasis
supplied)
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Commissioner Regalado E. Maambong opined that the people's initiative
could avert a revolution, viz:78
MR. MAAMBONG. x x x x the amending process of the
Constitution could actually avert a revolution by providing a
safety valve in bringing about changes in the Constitution through
pacific means. This, in effect, operationalizes what political law
authors call the "prescription of sovereignty." (emphasis supplied)
The end result is Section 2, Article XVII of the 1987 Constitution which
expressed the right of the sovereign people to propose amendments to
the Constitution by direct action or through initiative. To that extent, the
delegated power of Congress to amend or revise the Constitution has to
be adjusted downward. Thus, Section 1, Article VI of the 1987 Constitution
has to be reminted and now provides: "The legislative power shall be
vested in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum."
Prescinding from these baseline premises, the argument that the people
through initiative cannot propose substantial amendments to change
the Constitution turns sovereignty on its head. At the very least, the
submission constricts the democratic space for the exercise of the direct
sovereignty of the people. It also denigrates the sovereign people who
they claim can only be trusted with the power to propose "simple" but
not "substantial" amendments to the Constitution. According to Sinco,
the concept of sovereignty should be strictly understood in its legal
meaning as it was originally developed in law.79 Legal sovereignty, he
explained, is "the possession of unlimited power to make laws. Its
possessor is the legal sovereign. It implies the absence of any other party
endowed with legally superior powers and privileges. It is not subject to
law 'for it is the author and source of law.' Legal sovereignty is thus the
equivalent of legal omnipotence."80
To be sure, sovereignty or popular sovereignty, emphasizes the
supremacy of the people's will over the state which they themselves have
created. The state is created by and subject to the will of the people, who
are the source of all political power. Rightly, we have ruled that "the
sovereignty of our people is not a kabalistic principle whose dimensions
are buried in mysticism. Its metes and bounds are familiar to the framers
of our Constitutions. They knew that in its broadest sense, sovereignty is
meant to be supreme, the jus summi imperu, the absolute right to
govern."81
James Wilson, regarded by many as the most brilliant, scholarly, and
visionary lawyer in the United States in the 1780s, laid down the first
principles of popular sovereignty during the Pennsylvania ratifying
convention of the 1787 Constitution of the United States:82
There necessarily exists, in every government, a power from
which there is no appeal, and which, for that reason, may be
termed supreme, absolute, and uncontrollable.
x x x x Perhaps some politician, who has not considered with
sufficient accuracy our political systems, would answer that, in
our governments, the supreme power was vested in the
constitutions x x x x This opinion approaches a step nearer to the
truth, but does not reach it. The truth is, that in our
governments, the supreme, absolute, and uncontrollable power
remains in the people. As our constitutions are superior to our
legislatures, so the people are superior to our constitutions.
Indeed the superiority, in this last instance, is much greater; for
the people possess over our constitution, control in act, as well as
right. (emphasis supplied)
I wish to reiterate that in a democratic and republican state, only the
people is sovereign - - - not the elected President, not the elected
Congress, not this unelected Court. Indeed, the sovereignty of the people
which is indivisible cannot be reposed in any organ of government. Only
its exercise may be delegated to any of them. In our case, the people
delegated to Congress the exercise of the sovereign power to amend or
revise the Constitution. If Congress, as delegate, can exercise this power
to amend or revise the Constitution, can it be argued that the sovereign
people who delegated the power has no power to substantially amend
the Constitution by direct action? If the sovereign people do not have this
power to make substantial amendments to the Constitution, what did it
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delegate to Congress? How can the people lack this fraction of a power
to substantially amend the Constitution when by their sovereignty, all
power emanates from them? It will take some mumbo jumbo to argue
that the whole is lesser than its part. Let Sinco clinch the point:83
But although possession may not be delegated, the exercise of
sovereignty often is. It is delegated to the organs and agents of
the state which constitute its government, for it is only through
this instrumentality that the state ordinarily functions. However
ample and complete this delegation may be, it is nevertheless
subject to withdrawal at any time by the state. On this point
Willoughby says:
Thus, States may concede to colonies almost complete
autonomy of government and reserve to themselves a
right to control of so slight and so negative a character as
to make its exercise a rare and improbable occurrence;
yet so long as such right of control is recognized to exist,
and the autonomy of the colonies is conceded to be
founded upon a grant and continuing consent of the
mother countries the sovereignty of those mother
countries over them is complete and they are to be
considered as possessing only administrative autonomy
and not political independence.
At the very least, the power to propose substantial amendments to the
Constitution is shared with the people. We should accord the most
benign treatment to the sovereign power of the people to propose
substantial amendments to the Constitution especially when the
proposed amendments will adversely affect the interest of some
members of Congress. A contrary approach will suborn the public weal
to private interest and worse, will enable Congress (the delegate) to
frustrate the power of the people to determine their destiny (the
principal).
All told, the teaching of the ages is that constitutional clauses
acknowledging the right of the people to exercise initiative and
referendum are liberally and generously construed in favor of the
people.84 Initiative and referendum powers must be broadly construed to
maintain maximum power in the people.85 We followed this orientation
in Subic Bay Metropolitan Authority v. Commission on Elections.86 There
is not an iota of reason to depart from it.
V
The issues at bar are not political questions.
Petitioners submit that "[t]he validity of the exercise of the right of the
sovereign people to amend the Constitution and their will, as expressed
by the fact that over six million registered voters indicated their support
of the Petition for Initiative, is a purely political question which is beyond
even the very long arm of this Honorable Court's power of judicial review.
Whether or not the 1987 Constitution should be amended is a matter
which the people and the people alone must resolve in their sovereign
capacity."87 They argue that "[t]he power to propose amendments to the
Constitution is a right explicitly bestowed upon the sovereign people.
Hence, the determination by the people to exercise their right to propose
amendments under the system of initiative is a sovereign act and falls
squarely within the ambit of a 'political question.'"88
The petitioners cannot be sustained. This issue has long been interred by
Sanidad v. Commission on Elections, viz:89
Political questions are neatly associated with the wisdom, not the
legality of a particular act. Where the vortex of the controversy
refers to the legality or validity of the contested act, that matter is
definitely justiciable or non-political. What is in the heels of the
Court is not the wisdom of the act of the incumbent President in
proposing amendments to the Constitution, but his constitutional
authority to perform such act or to assume the power of a
constituent assembly. Whether the amending process confers on
the President that power to propose amendments is therefore a
downright justiciable question. Should the contrary be found, the
actuation of the President would merely be a brutum fulmen. If
the Constitution provides how it may be amended, the judiciary as
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 the interpreter of that Constitution, can declare whether the
procedure followed or the authority assumed was valid or not.
We cannot accept the view of the Solicitor General, in pursuing
his theory of non-justiciability, that the question of the President's
authority to propose amendments and the regularity of the
procedure adopted for submission of the proposals to the people
ultimately lie in the judgment of the latter. A clear Descartes
fallacy of vicious cycle. Is it not that the people themselves, by
their sovereign act, provided for the authority and procedure for
the amending process when they ratified the present Constitution
in 1973? Whether, therefore, that constitutional provision has
been followed or not is indisputably a proper subject of inquiry,
not by the people themselves of course who exercise no
power of judicial review, but by the Supreme Court in whom the
people themselves vested that power, a power which includes
the competence to determine whether the constitutional norms
for amendments have been observed or not. And, this inquiry
must be done a priori not a posteriori, i.e., before the submission
to and ratification by the people.
In the instant case, the Constitution sets in black and white the
requirements for the exercise of the people's initiative to amend the
Constitution. The amendments must be proposed by the people "upon a
petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment under
this section shall be authorized within five years following the ratification
of this Constitution nor oftener than once every five years thereafter." 90
Compliance with these requirements is clearly a justiciable and not a
political question. Be that as it may, how the issue will be resolved by the
people is addressed to them and to them alone.
VI
Whether the Petition for Initiative filed before the COMELEC complied
with Section 2, Article XVII of the Constitution and R.A. 6735 involves
contentious issues of fact which should first be resolved by the
COMELEC.
Oppositors-intervenors impugn the Petition for Initiative as it allegedly
lacks the required number of signatures under Section 2, Article XVII of
the Constitution. Said provision requires that the petition for initiative be
supported by at least twelve per cent (12%) of the total number of
registered voters, of which every legislative district must be represented
by at least three per cent (3%) of the registered voters therein.
Oppositors-intervenors contend that no proper verification of signatures
was done in several legislative districts. They assert that mere verification
of the names listed on the signature sheets without verifying the
signatures reduces the signatures submitted for their respective
legislative districts to mere scribbles on a piece of paper.
Oppositor-intervenor ONEVOICE, Inc., submitted to this Court a
certification dated August 23, 2006 issued by Atty. Marlon S. Casquejo,
Election Officer IV, Third District and OIC, First and Second District, Davao
City, stating that his office has not verified the signatures submitted by
the proponents of the people's initiative. The certification reads:
This is to CERTIFY that this office (First, Second and Third District,
Davao City) HAS NOT VERIFIED the signatures of registered
voters as per documents submitted in this office by the
proponents of the People's Initiative. Consequently, NO
ELECTION DOCUMENTS AND/OR ORDER ISSUED BY HIGHER
SUPERIORS used as basis for such verification of signatures.91
Senate Minority Leader Aquilino Pimentel, Jr., among others, further
clarified that although Atty. Casquejo and Reynne Joy B. Bullecer, Acting
Election Officer IV, First District, Davao City, later issued certifications
stating that the Office of the City Election Officer has examined the list of
individuals appearing in the signature sheets,92 the certifications reveal
that the office had verified only the names of the signatories, but not
their signatures. Oppositors-intervenors submit that not only the names
of the signatories should be verified, but also their signatures to ensure
the identities of the persons affixing their signatures on the signature
sheets.
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Oppositor-intervenor Luwalhati Antonino also alleged that petitioners
failed to obtain the signatures of at least three per cent (3%) of the total
number of registered voters in the First Legislative District of South
Cotabato. For the First District of South Cotabato, petitioners submitted
3,182 signatures for General Santos City, 2,186 signatures for Tupi, 3,308
signatures for Tampakan and 10,301 signatures for Polomolok, or 18,977
signatures out of 359,488 registered voters of said district. Antonino,
however, submitted to this Court a copy of the certification by Glory D.
Rubio, Election Officer III, Polomolok, dated May 8, 2006, showing that
the signatures from Polomolok were not verified because the Book of
Voters for the whole municipality was in the custody of the Clerk of Court
of the Regional Trial Court, Branch 38, Polomolok, South Cotabato.93
Excluding the signatures from Polomolok from the total number of
signatures from the First District of South Cotabato would yield only a
total of 8,676 signatures which falls short of the three per cent (3%)
requirement for the district.
Former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino
likewise submitted to this Court a certification issued by Atty. Stalin A.
Baguio, City Election Officer IV, Cagayan de Oro City, stating that the list
of names appearing on the signature sheets corresponds to the names of
registered voters in the city, thereby implying that they have not actually
verified the signatures.94
The argument against the sufficiency of the signatures is further
bolstered by Alternative Law Groups, Inc., which submitted copies of
similarly worded certifications from the election officers from
Zamboanga del Sur95 and from Compostela Valley.96 Alternative Law
Groups, Inc., further assails the regularity of the verification process as it
alleged that verification in some areas were conducted by Barangay
officials and not by COMELEC election officers. It filed with this Court
copies of certifications from Sulu and Sultan Kudarat showing that the
verification was conducted by local officials instead of COMELEC
personnel.97
Petitioners, on the other hand, maintain that the verification conducted
by the election officers sufficiently complied with the requirements of the
Constitution and the law on initiative.
Contravening the allegations of oppositors-intervenors on the lack of
verification in Davao City and in Polomolok, South Cotabato, petitioner
Aumentado claimed that the same election officers cited by the
oppositors-intervenors also issued certifications showing that they have
verified the signatures submitted by the proponents of the people's
initiative. He presented copies of the certifications issued by Atty. Marlon
S. Casquejo for the Second and Third Legislative Districts of Davao City
stating that he verified the signatures of the proponents of the people's
initiative. His certification for the Second District states:
This is to CERTIFY that this Office has examined the list of
individuals as appearing in the Signature Sheets of the Registered
Voters of District II, Davao City, submitted on April 7, 2006 by MR.
NONATO BOLOS, Punong Barangay, Centro, Davao City for
verification which consists of THIRTY THOUSAND SIX HUNDRED
SIXTY-TWO (30,662) signatures.
Anent thereto, it appears that of the THIRTY THOUSAND SIX
HUNDRED SIXTY-TWO (30,662) individuals, only TWENTY-TWO
THOUSAND SIX HUNDRED SIXTY-EIGHT (22,668) individuals were
found to be REGISTERED VOTERS, in the Computerized List of
Voters of SECOND CONGRESSIONAL DISTRICT, DAVAO CITY.98
It was also shown that Atty. Casquejo had issued a clarificatory
certification regarding the verification process conducted in Davao City. It
reads:
Regarding the verification of the signatures of registered voters,
this Office has previously issued two (2) separate certifications for
the 2nd and 3rd Districts of Davao City on April 20, 2006 and April
26, 2006, respectively, specifically relating to the voters who
supported the people's initiative. It was stated therein that the
names submitted, comprising 22,668 individual voters in the 2nd
District and 18,469 individual voters in the 3rd District, were found
[to] be registered voters of the respective districts mentioned as
verified by this Office based on the Computerized List of Voters.
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 It must be clarified that the August 23, 2006 Certification was
issued in error and by mistake for the reason that the signature
verification has not been fully completed as of that date.
I hereby CERTIFY that this Office has examined the signatures of
the voters as appearing in the signature sheets and has compared
these with the signatures appearing in the book of voters and
computerized list of voters x x x 99
Petitioner Aumentado also submitted a copy of the certification dated
May 8, 2006 issued by Polomolok Election Officer Glory D. Rubio to
support their claim that said officer had conducted a verification of
signatures in said area. The certification states:
This is to certify further, that the total 68,359 registered voters of
this municipality, as of the May 10, 2004 elections, 10,804 names
with signatures were submitted for verification and out of which
10,301 were found to be legitimate voters as per official list of
registered voters, which is equivalent to 15.07% of the total
number of registered voters of this Municipality.100
In addition to the lack of proper verification of the signatures in
numerous legislative districts, allegations of fraud and irregularities in the
collection of signatures in Makati City were cited by Senator Pimentel,
among others, to wit:
(1) No notice was given to the public, for the benefit of those who
may be concerned, by the Makati COMELEC Office that signature
sheets have already been submitted to it for "verification." The
camp of Mayor Binay was able to witness the "verification
process" only because of their pro-active stance;
(2) In District 1, the proponents of charter change submitted
43,405 signatures for verification. 36,219 alleged voters'
signatures (83% of the number of signatures submitted) were
rejected outright. 7,186 signatures allegedly "passed" COMELEC's
initial scrutiny. However, upon examination of the signature
sheets by Atty. Mar-len Abigail Binay, the said 7,186 signatures
could not be accounted for. Atty. Binay manually counted 2,793
signatures marked with the word "OK" and 3,443 signatures
marked with a check, giving only 6,236 "apparently verified
signatures." Before the COMELEC officer issued the Certification,
Atty. Binay already submitted to the said office not less than 55
letters of "signature withdrawal," but no action was ever taken
thereon;
(3) In District 2, 29,411 signatures were submitted for verification.
23,521 alleged voters' signatures (80% of those submitted) were
rejected outright. Of the 5,890 signatures which allegedly passed
the COMELEC's initial scrutiny, some more will surely fail upon
closer examination;
(4) In the absence of clear, transparent, and uniform rules the
COMELEC personnel did not know how to treat the objections
and other observations coming from the camp of Mayor Binay.
The oppositors too did not know where to go for their remedy
when the COMELEC personnel merely "listened" to their
objections and other observations. As mentioned earlier, the
COMELEC personnel did not even know what to do with the many
"letters of signature withdrawal" submitted to it;
(5) Signatures of people long dead, in prison, abroad, and other
forgeries appear on the Sigaw ng Bayan Signature Sheets. There
is even a 15-year old alleged signatory;
(6) There are Signature Sheets obviously signed by one person;
(7) A Calara M. Roberto and a Roberto M. Calara both allegedly
signed the Signature Sheets.101
Also, there are allegations that many of the signatories did not
understand what they have signed as they were merely misled into
signing the signature sheets. Opposed to these allegations are rulings
that a person who affixes his signature on a document raises the
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presumption that the person so signing has knowledge of what the
document contains. Courts have recognized that there is great value in
the stability of records, so to speak, that no one should commit herself or
himself to something in writing unless she or he is fully aware and
cognizant of the effect it may have upon her on him.102 In the same vein,
we have held that a person is presumed to have knowledge of the
contents of a document he has signed.103 But as this Court is not a trier of
facts, it cannot resolve the issue.
In sum, the issue of whether the petitioners have complied with the
constitutional requirement that the petition for initiative be signed by at
least twelve per cent (12%) of the total number of registered voters, of
which every legislative district must be represented by at least three per
cent (3%) of the registered voters therein, involves contentious facts. Its
resolution will require presentation of evidence and their calibration by
the COMELEC according to its rules. During the oral argument on this
case, the COMELEC, through Director Alioden Dalaig of its Law
Department, admitted that it has not examined the documents
submitted by the petitioners in support of the petition for initiative, as
well as the documents filed by the oppositors to buttress their claim that
the required number of signatures has not been met. The exchanges
during the oral argument likewise clearly show the need for further
clarification and presentation of evidence to prove certain material
facts.104
The only basis used by the COMELEC to dismiss the petition for initiative
was this Court's ruling in Santiago v. COMELEC that R.A. 6735 was
insufficient. It has yet to rule on the sufficiency of the form and
substance of the petition. I respectfully submit that this issue should be
properly litigated before the COMELEC where both parties will be given
full opportunity to prove their allegations.
For the same reasons, the sufficiency of the Petition for Initiative and its
compliance with the requirements of R.A. 6735 on initiative and its
implementing rules is a question that should be resolved by the COMELEC
at the first instance, as it is the body that is mandated by the Constitution
to administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall.105
VII
COMELEC gravely abused its discretion when it denied due
course to the Lambino and Aumentado petition.
In denying due course to the Lambino and Aumentado petition,
COMELEC relied on this Court's ruling in Santiago permanently enjoining
it from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been
validly enacted to provide for the implementation of the system.
Again, I respectfully submit that COMELEC's reliance on Santiago
constitutes grave abuse of discretion amounting to lack of jurisdiction.
The Santiago case did not establish the firm doctrine that R.A. 6735 is
not a sufficient law to implement the constitutional provision allowing
people's initiative to amend the Constitution. To recapitulate, the records
show that in the original decision, eight (8) justices106 voted that R.A.
6735 was not a sufficient law; five (5) justices107 voted that said law was
sufficient; and one (1) justice108 abstained from voting on the issue
holding that unless and until a proper initiatory pleading is filed, the said
issue is not ripe for adjudication.109
Within the reglementary period, the respondents filed their motion for
reconsideration. On June 10, 1997, the Court denied the motion. Only
thirteen (13) justices resolved the motion for Justice Torres inhibited
himself.110 Of the original majority of eight (8) justices, only six (6)
reiterated their ruling that R.A. 6735 was an insufficient law. Justice
Hermosisima, originally part of the majority of eight (8) justices, changed
his vote and joined the minority of five (5) justices. He opined without any
equivocation that R.A. 6735 was a sufficient law, thus:
It is one thing to utter a happy phrase from a protected cluster;
another to think under fire to think for action upon which great
interests depend." So said Justice Oliver Wendell Holmes, and so I
am guided as I reconsider my concurrence to the holding of the
majority that "R.A. No. 6735 is inadequate to cover the system of
initiative on amendments to the Constitution and to have failed to
323
 provide sufficient standard for subordinate legislation" and now
to interpose my dissent thereto.
xxx
WHEREFORE, I vote to dismiss the Delfin petition.
I vote, however, to declare R.A. No. 6735 as adequately providing
the legal basis for the exercise by the people of their right to
amend the Constitution through initiative proceedings and to
uphold the validity of COMELEC Resolution No. 2300 insofar as it
does not sanction the filing of the initiatory petition for initiative
proceedings to amend the Constitution without the required
names and/or signatures of at least 12% of all the registered
voters, of which every legislative district must be represented by
at least 3% of the registered voters therein. (emphasis supplied)
Justice Vitug remained steadfast in refusing to rule on the sufficiency of
R.A. 6735. In fine, the final vote on whether R.A. 6735 is a sufficient law
was 6-6 with one (1) justice inhibiting himself and another justice refusing
to rule on the ground that the issue was not ripe for adjudication.
It ought to be beyond debate that the six (6) justices who voted that R.A.
6735 is an insufficient law failed to establish a doctrine that could serve as
a precedent. Under any alchemy of law, a deadlocked vote of six (6) is
not a majority and a non-majority cannot write a rule with precedential
value. The opinion of the late Justice Ricardo J. Francisco is instructive,
viz:
As it stands, of the thirteen justices who took part in the
deliberations on the issue of whether the motion for
reconsideration of the March 19, 1997 decision should be granted
or not, only the following justices sided with Mr. Justice Davide,
namely: Chief Justice Narvasa, and Justices Regalado, Romero,
Bellosillo and Kapunan. Justices Melo, Puno, Mendoza,
Hermosisima, Panganiban and the undersigned voted to grant the
motion; while Justice Vitug "maintained his opinion that the
matter was not ripe for judicial adjudication." In other words, only
five, out of the other twelve justices, joined Mr. Justice Davide's
June 10, 1997 ponencia finding R.A. No. 6735 unconstitutional for
its failure to pass the so called "completeness and sufficiency
standards" tests. The "concurrence of a majority of the members
who actually took part in the deliberations" which Article VII,
Section 4(2) of the Constitution requires to declare a law
unconstitutional was, beyond dispute, not complied with. And
even assuming, for the sake of argument, that the constitutional
requirement on the concurrence of the "majority" was initially
reached in the March 19, 1997 ponencia, the same is inconclusive
as it was still open for review by way of a motion for
reconsideration. It was only on June 10, 1997 that the
constitutionality of R.A. No. 6735 was settled with finality, sans
the constitutionally required "majority." The Court's declaration,
therefore, is manifestly grafted with infirmity and wanting in
force necessitating, in my view, the reexamination of the Court's
decision in G.R. No. 127325. It behooves the Court "not to tarry
any longer" nor waste this opportunity accorded by this new
petition (G.R. No. 129754) to relieve the Court's pronouncement
from constitutional infirmity.
The jurisprudence that an equally divided Court can never set a precedent
is well-settled. Thus, in the United States, an affirmance in the Federal
Supreme Court upon equal division of opinion is not an authority for the
determination of other cases, either in that Court or in the inferior federal
courts. In Neil v. Biggers,111 which was a habeas corpus state proceeding
by a state prisoner, the U.S. Supreme Court held that its equally divided
affirmance of petitioner's state court conviction was not an "actual
adjudication" barring subsequent consideration by the district court on
habeas corpus. In discussing the non-binding effect of an equal division
ruling, the Court reviewed the history of cases explicating the disposition
"affirmed by an equally divided Court:"
In this light, we review our cases explicating the disposition
"affirmed by an equally divided Court." On what was apparently
the first occasion of an equal division, The Antelope, 10 Wheat,
66, 6 L. Ed. 268 (1825), the Court simply affirmed on the point of
324
 division without much discussion. Id., at 126-127. Faced with a
similar division during the next Term, the Court again affirmed,
Chief Justice Marshall explaining that "the principles of law which
have been argued, cannot be settled; but the judgment is
affirmed, the court being divided in opinion upon it." Etting v.
Bank of United States, 11 Wheat. 59, 78, 6 L. Ed. 419 (1826). As was
later elaborated in such cases, it is the appellant or petitioner who
asks the Court to overturn a lower court's decree. "If the judges
are divided, the reversal cannot be had, for no order can be made.
The judgment of the court below, therefore, stands in full force. It
is indeed, the settled practice in such case to enter a judgment of
affirmance; but this is only the most convenient mode of
expressing the fact that the cause is finally disposed of in
conformity with the action of the court below, and that that court
can proceed to enforce its judgment. The legal effect would be
the same if the appeal, or writ of error, were dismissed." Durant
v. Essex Co., 7 Wall. 107, 112, 19 L. Ed. 154 (1869). Nor is an
affirmance by an equally divided Court entitled to precedential
weight. Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264, 80 S. Ct.
1463, 1464, 4 L. Ed. 2d 1708 (1960).xxx"
This doctrine established in Neil has not been overturned and has been
cited with approval in a number of subsequent cases,112 and has been
applied in various state jurisdictions.
In the case of In the Matter of the Adoption of Erin G., a Minor Child,113
wherein a putative father sought to set aside a decree granting petition
for adoption of an Indian child on grounds of noncompliance with the
requirements of Indian Child Welfare Act (ICWA), the Supreme Court of
Alaska held that its decision in In re Adoption of T.N.F. (T.N.F.),114 which
lacked majority opinion supporting holding that an action such as the
putative father's would be governed by the state's one-year statute of
limitations, was not entitled to stare decisis effect. In T.N.F., a majority of
the justices sitting did not agree on a common rationale, as two of four
participating justices agreed that the state's one-year statute of
limitations applied, one justice concurred in the result only, and one
justice dissented. There was no "narrower" reasoning agreed upon by all
three affirming justices. The concurring justice expressed no opinion on
the statute of limitations issue, and in agreeing with the result, he
reasoned that ICWA did not give the plaintiff standing to sue.115 The two-
justice plurality, though agreeing that the state's one-year statute of
limitations applied, specifically disagreed with the concurring justice on
the standing issue.116 Because a majority of the participating justices in
T.N.F. did not agree on any one ground for affirmance, it was not
accorded stare decisis effect by the state Supreme Court.
The Supreme Court of Michigan likewise ruled that the doctrine of stare
decisis does not apply to plurality decisions in which no majority of the
justices participating agree to the reasoning and as such are not
authoritative interpretations binding on the Supreme Court.117
In State ex rel. Landis v. Williams,118 the Supreme Court of Florida, in an
equally divided opinion on the matter,119 held that chapter 15938, Acts of
1933 must be allowed to stand, dismissing a quo warranto suit without
prejudice. The Court held:
In a cause of original jurisdiction in this court a statute cannot be
declared unconstitutional nor its enforcement nor operation
judicially interfered with, except by the concurrence of a majority
of the members of the Supreme Court sitting in the cause
wherein the constitutionality of the statute is brought in question
or judicial relief sought against its enforcement. Section 4 of
Article 5, state Constitution.
Therefore in this case the concurrence of a majority of the
members of this court in holding unconstitutional said chapter
15938, supra, not having been had, it follows that the statute in
controversy must be allowed to stand and accordingly be
permitted to be enforced as a presumptively valid act of the
Legislature, and that this proceeding in quo warranto must be
dismissed without prejudice. Spencer v. Hunt (Fla.) 147 So. 282.
This decision is not to be regarded as a judicial precedent on the
question of constitutional law involved concerning the
constitutionality vel non of chapter 15938. State ex rel. Hampton
v. McClung, 47 Fla. 224, 37 So. 51.
325
 Quo warranto proceeding dismissed without prejudice by equal
division of the court on question of constitutionality of statute
involved.
120
In U.S. v. Pink, the Court held that the affirmance by the U.S. Supreme
Court by an equally divided vote of a decision of the New York Court of
Appeals that property of a New York branch of a Russian insurance
company was outside the scope of the Russian Soviet government's
decrees terminating existence of insurance companies in Russia and
seizing their assets, while conclusive and binding upon the parties as
respects the controversy in that action, did not constitute an
authoritative "precedent."
In Berlin v. E.C. Publications, Inc.,121 the U.S. Court of Appeals Second
Circuit, in holding that printed lyrics which had the same meter as
plaintiffs' lyrics, but which were in form a parody of the latter, did not
constitute infringement of plaintiffs' copyrights, ruled that the prior case
of Benny v. Loew's, Inc.,122 which was affirmed by an equally divided
court, was not binding upon it, viz:
Under the precedents of this court, and, as seems justified by
reason as well as by authority, an affirmance by an equally divided
court is as between the parties, a conclusive determination and
adjudication of the matter adjudged; but the principles of law
involved not having been agreed upon by a majority of the court
sitting prevents the case from becoming an authority for the
determination of other cases, either in this or in inferior courts.123
In Perlman v. First National Bank of Chicago,124 the Supreme Court of
Illinois dismissed the appeal as it was unable to reach a decision because
two judges recused themselves and the remaining members of the Court
were so divided, it was impossible to secure the concurrence of four
judges as is constitutionally required. The Court followed the procedure
employed by the U.S. Supreme Court when the Justices of that Court are
equally divided, i.e. affirm the judgment of the court that was before it for
review. The affirmance is a conclusive determination and adjudication as
between the parties to the immediate case, it is not authority for the
determination of other cases, either in the Supreme Court or in any other
court. It is not "entitled to precedential weight." The legal effect of such
an affirmance is the same as if the appeal was dismissed.125
The same rule is settled in the English Courts. Under English
precedents,126 an affirmance by an equally divided Court is, as between
the parties, a conclusive determination and adjudication of the matter
adjudged; but the principles of law involved not having been agreed upon
by a majority of the court sitting prevents the case from becoming an
authority for the determination of other cases, either in that or in inferior
courts.
After a tour of these cases, we can safely conclude that the prevailing
doctrine is that, the affirmance by an equally divided court merely
disposes of the present controversy as between the parties and settles
no issue of law; the affirmance leaves unsettled the principle of law
presented by the case and is not entitled to precedential weight or value.
In other words, the decision only has res judicata and not stare decisis
effect. It is not conclusive and binding upon other parties as respects the
controversies in other actions.
Let us now examine the patent differences between the petition at bar
and the Delfin Petition in the Santiago case which will prevent the
Santiago ruling from binding the present petitioners. To start with, the
parties are different. More importantly, the Delfin Petition did not
contain the signatures of the required number of registered voters under
the Constitution: the requirement that twelve per cent (12%) of all the
registered voters in the country wherein each legislative district is
represented by at least three per cent (3%) of all the registered voters
therein was not complied with. For this reason, we ruled unanimously
that it was not the initiatory petition which the COMELEC could properly
take cognizance of. In contrast, the present petition appears to be
accompanied by the signatures of the required number of registered
voters. Thus, while the Delfin Petition prayed that an Order be issued
fixing the time and dates for signature gathering all over the country, the
Lambino and Aumentado petition, prayed for the calling of a plebiscite to
allow the Filipino people to express their sovereign will on the
proposition. COMELEC cannot close its eyes to these material differences.
326
Plainly, the COMELEC committed grave abuse of discretion amounting to
lack of jurisdiction in denying due course to the Lambino and Aumentado
petition on the basis of its mistaken notion that Santiago established the
doctrine that R.A. 6735 was an insufficient law. As aforestressed, that
ruling of six (6) justices who do not represent the majority lacks
precedential status and is non-binding on the present petitioners.
The Court's dismissal of the PIRMA petition is of no moment. Suffice it to
say that we dismissed the PIRMA petition on the principle of res judicata.
This was stressed by former Chief Justice Hilario G. Davide Jr., viz:
The following are my reasons as to why this petition must be summarily
dismissed:
First, it is barred by res judicata. No one aware of the pleadings
filed here and in Santiago v. COMELEC (G.R. No. 127325, 19 March
1997) may plead ignorance of the fact that the former is
substantially identical to the latter, except for the reversal of the
roles played by the principal parties and inclusion of additional,
yet not indispensable, parties in the present petition. But plainly,
the same issues and reliefs are raised and prayed for in both
cases.
The principal petitioner here is the PEOPLE'S INITIATIVE FOR
REFORM, MODERNIZATION, AND ACTION (PIRMA) and spouses
ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-
described as "a non-stock, non-profit organization duly organized
and existing under Philippine laws with office address at Suite
403, Fedman Suites, 199 Salcedo Street, Legaspi Village, Makati
City," with "ALBERTO PEDROSA and CARMEN PEDROSA" as
among its "officers." In Santiago, the PEDROSAS were made
respondents as founding members of PIRMA which, as alleged in
the body of the petition therein, "proposes to undertake the
signature drive for a people's initiative to amend the
Constitution." In Santiago then, the PEDROSAS were sued in their
capacity as founding members of PIRMA.
The decision in Santiago specifically declared that PIRMA was duly
represented at the hearing of the Delfin petition in the COMELEC.
In short, PIRMA was intervenor-petitioner therein. Delfin alleged
in his petition that he was a founding member of the Movement
for People's Initiative, and under footnote no. 6 of the decision, it
was noted that said movement was "[l]ater identified as the
People's Initiative for Reforms, Modernization and Action, or
PIRMA for brevity." In their Comment to the petition in Santiago,
the PEDROSAS did not deny that they were founding members of
PIRMA, and by their arguments, demonstrated beyond a shadow
of a doubt that they had joined Delfin or his cause.
No amount of semantics may then shield herein petitioners
PIRMA and the PEDROSAS, as well as the others joining them,
from the operation of the principle of res judicata, which needs
no further elaboration. (emphasis supplied)
Justice Josue N. Bellosillo adds:
The essential requisites of res judicata are: (1) the former
judgment must be final; (2) it must have been rendered by a court
having jurisdiction over the subject matter and the parties; (3) it
must be a judgment on the merits; and (4) there must be
between the first and second actions identity of parties, identity
of subject matter, and identity of causes of action.127
Applying these principles in the instant case, we hold that all the
elements of res judicata are present. For sure, our Decision in
Santiago v. COMELEC, which was promulgated on 19 March 1997,
and the motions for reconsideration thereof denied with finality
on 10 June 1997, is undoubtedly final. The said Decision was
rendered by this Court which had jurisdiction over the petition for
prohibition under Rule 65. Our judgment therein was on the
merits, i.e., rendered only after considering the evidence
presented by the parties as well as their arguments in support of
their respective claims and defenses. And, as between Santiago v.
COMELEC case and COMELEC Special Matter No. 97-001 subject of
327
 the present petition, there is identity of parties, subject matter
and causes of action.
Petitioners contend that the parties in Santiago v. COMELEC are
not identical to the parties in the instant case as some of the
petitioners in the latter case were not parties to the former case.
However, a perusal of the records reveals that the parties in
Santiago v. COMELEC included the COMELEC, Atty. Jesus S.
Delfin, spouses Alberto and Carmen Pedrosa, in their capacities as
founding members of PIRMA, as well as Atty. Pete Quirino-
Quadra, another founding member of PIRMA, representing
PIRMA, as respondents. In the instant case, Atty. Delfin was never
removed, and the spouses Alberto and Carmen Pedrosa were
joined by several others who were made parties to the petition. In
other words, what petitioners did was to make it appear that the
PIRMA Petition was filed by an entirely separate and distinct
group by removing some of the parties involved in Santiago v.
COMELEC and adding new parties. But as we said in Geralde v.
Sabido128-
A party may not evade the application of the rule of res
judicata by simply including additional parties in the
subsequent case or by not including as parties in the later
case persons who were parties in the previous suit. The
joining of new parties does not remove the case from the
operation of the rule on res judicata if the party against
whom the judgment is offered in evidence was a party in
the first action; otherwise, the parties might renew the
litigation by simply joining new parties.
The fact that some persons or entities joined as parties in the
PIRMA petition but were not parties in Santiago v. COMELEC does
not affect the operation of the prior judgment against those
parties to the PIRMA Petition who were likewise parties in
Santiago v. COMELEC, as they are bound by such prior judgment.
Needless to state, the dismissal of the PIRMA petition which was based
on res judicata binds only PIRMA but not the petitioners.
VIII
Finally, let the people speak.
"It is a Constitution we are expounding" solemnly intoned the great
Chief Justice John Marshall of the United States in the 1819 case of
M'cCulloch v. Maryland.129 Our Constitution is not a mere collection of
slogans. Every syllable of our Constitution is suffused with significance
and requires our full fealty. Indeed, the rule of law will wither if we allow
the commands of our Constitution to underrule us.
The first principle enthroned by blood in our Constitution is the
sovereignty of the people. We ought to be concerned with this first
principle, i.e., the inherent right of the sovereign people to decide
whether to amend the Constitution. Stripped of its abstractions,
democracy is all about who has the sovereign right to make decisions for
the people and our Constitution clearly and categorically says it is no
other than the people themselves from whom all government authority
emanates. This right of the people to make decisions is the essence of
sovereignty, and it cannot receive any minimalist interpretation from
this Court. If there is any principle in the Constitution that cannot be
diluted and is non-negotiable, it is this sovereign right of the people to
decide.
This Court should always be in lockstep with the people in the exercise
of their sovereignty. Let them who will diminish or destroy the sovereign
right of the people to decide be warned. Let not their sovereignty be
diminished by those who belittle their brains to comprehend changes in
the Constitution as if the people themselves are not the source and
author of our Constitution. Let not their sovereignty be destroyed by the
masters of manipulation who misrepresent themselves as the spokesmen
of the people.
Be it remembered that a petition for people's initiative that complies with
the requirement that it "must be signed by at least 12% of the total
number of registered voters of which every legislative district is
represented by at least 3% of the registered voters therein" is but the first
step in a long journey towards the amendment of the Constitution. Lest
328
it be missed, the case at bar involves but a proposal to amend the
Constitution. The proposal will still be debated by the people and at this
time, there is yet no fail-safe method of telling what will be the result of
the debate. There will still be a last step to the process of amendment
which is the ratification of the proposal by a majority of the people in a
plebiscite called for the purpose. Only when the proposal is approved by
a majority of the people in the plebiscite will it become an amendment
to the Constitution. All the way, we cannot tie the tongues of the
people. It is the people who decide for the people are not an obscure
footnote in our Constitution.
The people's voice is sovereign in a democracy. Let us hear them. Let us
heed them. Let us not only sing paens to the people's sovereignty. Yes, it
is neither too soon nor too late to let the people speak.
IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the resolution of
the Commission on Elections dated August 31, 2006, denying due course
to the Petition for Initiative filed by Raul L. Lambino and Erico B.
Aumentado in their own behalf and together with some 6.3 million
registered voters who affixed their signatures thereon and to REMAND
the petition at bar to the Commission on Elections for further
proceedings.
REYNATO S. PUNO
Associate Justice
____________________
EN BANC
G. R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952
REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent; TRADE UNION
CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO
MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT
FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL WORKERS
ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-
Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN,
MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and
CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE
QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO,
HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA
WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS,
LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR.
REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA,
ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO,
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.
ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M.
BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and
AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P.
PIMENTEL, JR., and SENATORS SERGIO R. OSMEA III, JAMBY A.S.
MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO
S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and
PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES
CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ,
BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR
and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES,
Represented by its President, MANUEL VILLAR, JR., Oppositors-
Intervenors;
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q.
SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S.
ABALOS, SR., and Commissioners RESSURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V.
SARMIENTO, and John Doe and Peter Doe, Respondents.
x ---------------------------------------------------------------------------------------- x
329
SEPARATE OPINION
QUISUMBING, J.:
1. With due respect to the main opinion written by J. Antonio T. Carpio,
and the dissent of J. Reynato S. Puno, I view the matter before us in this
petition as one mainly involving a complex political question.1 While
admittedly the present Constitution lays down certain numerical
requirements for the conduct of a People's Initiative, such as the
percentages of signatures being 12% of the total number of registered
voters, provided each legislative district is represented by at least 3%
they are not the main points of controversy. Stated in simple terms, what
this Court must decide is whether the Commission on Elections gravely
abused its discretion when it denied the petition to submit the proposed
changes to the Constitution directly to the vote of the sovereign people
in a plebiscite. Technical questions, e.g. whether petitioners should have
filed a Motion for Reconsideration before coming to us, are of no
moment in the face of the transcendental issue at hand. What deserve
our full attention are the issues concerning the applicable rules as well as
statutory and constitutional limitations on the conduct of the People's
Initiative.
2. It must be stressed that no less than the present Constitution itself
empowers the people to "directly" propose amendments through their
own "initiative." The subject of the instant petition is by way of exercising
that initiative in order to change our form of government from
presidential to parliamentary. Much has been written about the fulsome
powers of the people in a democracy. But the most basic concerns the
idea that sovereignty resides in the people and that all government
authority emanates from them. Clearly, by the power of popular initiative,
the people have the sovereign right to change the present Constitution.
Whether the initial moves are done by a Constitutional Convention, a
Constitutional Assembly, or a People's Initiative, in the end every
amendment -- however insubstantial or radical -- must be submitted to a
plebiscite. Thus, it is the ultimate will of the people expressed in the
ballot, that matters.2
3. I cannot fault the COMELEC, frankly, for turning down the petition of
Messrs. Lambino, et al. For the COMELEC was just relying on precedents,
with the common understanding that, pursuant to the cases of Santiago
v. COMELEC3 and PIRMA v. COMELEC,4 the COMELEC had been permanently
enjoined from entertaining any petition for a people's initiative to amend
the Constitution by no less than this Court. In denying due course below
to Messrs. Lambino and Aumentado's petition, I could not hold the
COMELEC liable for grave abuse of discretion when they merely relied on
this Court's unequivocal rulings. Of course, the Santiago and the PIRMA
decisions could be reviewed and reversed by this Court, as J. Reynato S.
Puno submits now. But until the Court does so, the COMELEC was duty
bound to respect and obey this Court's mandate, for the rule of law to
prevail.
4. Lastly, I see no objection to the remand to the COMELEC of the petition
of Messrs. Lambino and Aumentado and 6.327 million voters, for further
examination of the factual requisites before a plebiscite is conducted. On
page 4 of the assailed Resolution of the respondent dated August 31,
2006, the COMELEC tentatively expressed its view that "even if the
signatures in the instant Petition appear to meet the required minimum
per centum of the total number of registered voters", the COMELEC could
not give the Petition due course because of our view that R.A. No. 6735
was inadequate. That, however, is now refuted by Mr. Justice Puno's
scholarly ponencia. Now that we have revisited the Santiago v. COMELEC
decision, there is only one clear task for COMELEC. In my view, the only
doable option left for the COMELEC, once factual issues are heard and
resolved, is to give due course to the petition for the initiative to amend
our Constitution so that the sovereign people can vote on whether a
parliamentary system of government should replace the present
presidential system.
5. I am therefore in favor of letting the sovereign people speak on their
choice of the form of government as a political question soonest. (This I
say without fear of media opinion that our judicial independence has
been tainted or imperiled, for it is not.) Thus I vote for the remand of the
petition. Thereafter, as prayed for, COMELEC should forthwith certify the
Petition as sufficient in form and substance and call for the holding of a
plebiscite within the period mandated by the basic law, not earlier than
330
sixty nor later than ninety days from said certification. Only a credible Constitution. These cases promise to significantly contribute to our
plebiscite itself, conducted peacefully and honestly, can bring closure to collective experience as a nation. Fealty to the primary constitutional
the instant political controversy. principle that the Philippines is not merely a republican State but a
democratic one as well behooves this Court to affirm the right of the
people to participate directly in the process of introducing changes to
LEONARDO A. QUISUMBING
their fundamental law. These petitions present such an opportunity.
Associate Justice
Thus, this is an opportune time for this Court to uphold the sovereign
rights of the people.
____________________
I agree with the opinion of Mr. Justice Reynato Puno who has sufficiently
EN BANC explained the rationale for upholding the people's initiative. However, I
wish to share my own thoughts on certain matters I deem material and
G. R. No. 174153 October 25, 2006 significant.

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 Santiago Does Not Apply to This Case But Only to the 1997 Delfin Petition
REGISTERED VOTERS, petitioners,
vs. The COMELEC denied the petition for initiative filed by petitioners
THE COMMISSION ON ELECTIONS, respondent. purportedly on the basis of this Court's ruling in Santiago v. COMELEC2
that: (1) RA 6753 was inadequate to cover the system of initiative
G. R. No. 174299 October 25, 2006 regarding amendments to the Constitution and (2) the COMELEC was
permanently enjoined from entertaining or taking cognizance of any
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. petition for initiative regarding amendments to the Constitution until a
SAGUISAG, petitioners, sufficient law was validly enacted to provide for the implementation of
vs. the initiative provision.
HE COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN
S. ABALOS, SR., and Commissioners RESURRECCION Z. BORRA, However, Santiago should not apply to this case but only to the petition
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. of Delfin in 1997. It would be unreasonable to make it apply to all
SARMIENTO, and John Doe and Peter Doe, respondents. petitions which were yet unforeseen in 1997. The fact is that Santiago was
focused on the Delfin petition alone.
x ---------------------------------------------------------------------------------------- x
Those who oppose the exercise of the people's right to initiate changes
DISSENTING OPINION to the Constitution via initiative claim that Santiago barred any and all
future petitions for initiative by virtue of the doctrines of stare decisis and
CORONA, J.: res judicata. The argument is flawed.

The life of the law is not logic but experience.1 Our collective experience
as a nation breathes life to our system of laws, especially to the

331
The ponencia of Mr. Justice Puno has amply discussed the arguments
relating to stare decisis. Hence, I will address the argument from the
viewpoint of res judicata.
Res judicata is the rule that a final judgment rendered by a court of
competent jurisdiction on the merits is conclusive as to the rights of the
parties and their privies and, as to them, constitutes an absolute bar to a
subsequent action involving the same claim, demand or cause of action.3
It has the following requisites: (1) the former judgment or order must be
final; (2) it must have been rendered by a court having jurisdiction of the
subject matter and of the parties; (3) it must be a judgment or order on
the merits and (4) there must be identity of parties, of subject matter,
and of cause of action between the first and second actions.4
There is no identity of parties in Santiago and the instant case. While the
COMELEC was also the respondent in Santiago, the petitioners in that
case and those in this case are different. More significantly, there is no
identity of causes of action in the two cases. Santiago involved
amendments to Sections 4 and 7 of Article VI, Section 4 of Article VII and
Section 8 of Article X of the Constitution while the present petition seeks
to amend Sections 1to 7 of Article VI and Sections 1 to 4 of the 1987
Constitution. Clearly, therefore, the COMELEC committed grave abuse of
discretion when it ruled that the present petition for initiative was barred
by Santiago and, on that ground, dismissed the petition.
The present petition and that in Santiago are materially different from
each other. They are not based on the same facts. There is thus no cogent
reason to frustrate and defeat the present direct action of the people to
exercise their sovereignty by proposing changes to their fundamental
law.
People's Initiative Should Not
Be Subjected to Conditions
People's initiative is an option reserved by the people for themselves
exclusively. Neither Congress nor the COMELEC has the power to curtail
or defeat this exclusive power of the people to change the Constitution.
Neither should the exercise of this power be made subject to any
conditions, as some would have us accept.
Oppositors to the people's initiative point out that this Court ruled in
Santiago that RA 6735 was inadequate to cover the system of initiative on
amendments to the Constitution and, thus, no law existed to enable the
people to directly propose changes to the Constitution. This reasoning is
seriously objectionable.
The pronouncement on the insufficiency of RA 6735 was, to my mind, out
of place. It was unprecedented and dangerously transgressed the domain
reserved to the legislature.
While the legislature is authorized to establish procedures for
determining the validity and sufficiency of a petition to amend the
constitution,5 that procedure cannot unnecessarily restrict the initiative
privilege.6 In the same vein, this Court cannot unnecessarily and
unreasonably restrain the people's right to directly propose changes to
the Constitution by declaring a law inadequate simply for lack of a sub-
heading and other grammatical but insignificant omissions. Otherwise,
the constitutional intent to empower the people will be severely
emasculated, if not rendered illusory.
People's Right and Power to Propose Changes to the Constitution
Directly Should not be Unreasonably Curtailed
If Congress and a constitutional convention, both of which are mere
representative bodies, can propose changes to the Constitution, there is
no reason why the supreme body politic itself the people may not do
so directly.
Resort to initiative to amend the constitution or enact a statute is an
exercise of "direct democracy" as opposed to "representative
democracy." The system of initiative allows citizens to directly propose
constitutional amendments for the general electorate to adopt or reject
at the polls, particularly in a plebiscite. While representative government
was envisioned to "refine and enlarge the public views, by passing them
332
through the medium of a chosen body of citizens, whose wisdom may
best discern the true interest of their country, and whose patriotism and
love of justice will be least likely to sacrifice it to temporary or partial
considerations,"7 the exercise of "direct democracy" through initiative
reserves direct lawmaking power to the people by providing them a
method to make new laws via the constitution, or alternatively by
enacting statutes.8 Efforts of the represented to control their
representatives through initiative have been described as curing the
problems of democracy with more democracy.9
The Constitution celebrates the sovereign right of the people and
declares that "sovereignty resides in the people and all government
authority emanates from them."10 Unless the present petition is granted,
this constitutional principle will be nothing but empty rhetoric, devoid of
substance for those whom it seeks to empower.
The right of the people to pass legislation and to introduce changes to
the Constitution is a fundamental right and must be jealously guarded.11
The people should be allowed to directly seek redress of the problems of
society and representative democracy with the constitutional tools they
have reserved for their use alone.
Accordingly, I vote to GRANT the petition in G.R. No. 174513.
RENATO C. CORONA
Associate Justice
____________________
EN BANC
G. R. No. 174153
RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952
REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L.
ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN
MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL
WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS,
Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD, RENE
B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V.
OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC.,
ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO
UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA,
GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO
STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO,
and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO
AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI
ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON,
FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P.
AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER
AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEA III,
JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY
ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO
ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE
PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I.
CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANOTNIO L.
SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE
PHILIPPINES, Represented by its President, MANUEL VILLAR, JR.,
Oppositors-Intervenors;
G.R. No. 174299 entitled
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q.
SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S.
ABALOS, SR., and Commissioners RESSURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V.
SARMIENTO, and John Doe and Peter Doe, Respondents.
x ---------------------------------------------------------------------------------------- x
333
SEPARATE OPINION
TINGA, J:
I join in full the opinion of Senior Associate Justice Puno. Its enviable
sang-froid, inimitable lucidity, and luminous scholarship are all so
characteristic of the author that it is hardly a waste of pen and ink to
write separately if only to express my deep admiration for his disquisition.
It is compelling because it derives from the fundamental democratic
ordinance that sovereignty resides in the people, and it seeks to
effectuate that principle through the actual empowerment of the
sovereign people. Justice Puno's opinion will in the short term engender
reactions on its impact on present attempts to amend the Constitution,
but once the political passion of the times have been shorn, it will endure
as an unequivocal message to the taongbayan that they are to be trusted
to chart the course of their future.
Nothing that I inscribe will improve on Justice Puno's opinion. I only write
separately to highlight a few other points which also inform my vote to
grant the petitions.
I.
1
I agree with Justice Puno that Santiago v. COMELEC and PIRMA v.
COMELEC2 had not acquired value as precedent and should be reversed in
any case. I add that the Court has long been mindful of the rule that it
necessitates a majority, and not merely a plurality, in order that a decision
can stand as precedent. That principle has informed the members of this
Court as they deliberated and voted upon contentious petitions, even if
this consideration is not ultimately reflected on the final draft released for
promulgation.
The curious twist to Santiago and PIRMA is that for all the denigration
heaped upon Rep. Act No. 6735 in those cases, the Court did not
invalidate any provision of the statute. All the Court said then was that
the law was "inadequate". Since this "inadequate" law was not annulled
by the Court, or repealed by Congress, it remained part of the statute
books.3
I maintain that even if Rep. Act No. 6735 is truly "inadequate", the Court
in Santiago should not have simply let the insufficiency stand given that it
was not minded to invalidate the law itself. Article 9 of the Civil Code
provides that "[n]o judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the laws."4 As
explained by the Court recently in Reyes v. Lim,5 "[Article 9] calls for the
application of equity, which[, in the revered Justice Cardozo's words,]
'fills the open spaces in the law.'"6 Certainly, any court that refuses to rule
on an action premised on Rep. Act No. 6735 on the ground that the law is
"inadequate" would have been found in grave abuse of discretion. The
previous failure by the Court to "fill the open spaces" in Santiago further
highlights that decision's status as an unfortunate aberration.
I am mindful of the need to respect stare decisis, to the point of having
recently decried a majority ruling that was clearly minded to reverse
several precedents but refused to explicitly say so.7 Yet the principle is
not immutable.8 The passionate words of Chief Justice Panganiban in
Osmea v. COMELEC9 bear quoting:
Before I close, a word about stare decisis. In the present case, the
Court is maintaining the ad ban to be consistent with its previous
holding in NPC vs. Comelec. Thus, respondent urges reverence for
the stability of judicial doctrines. I submit, however, that more
important than consistency and stability are the verity, integrity
and correctness of jurisprudence. As Dean Roscoe Pound
explains, "Law must be stable but it cannot stand still." Verily, it
must correct itself and move in cadence with the march of the
electronic age. Error and illogic should not be perpetuated. After
all, the Supreme Court, in many cases, has deviated from stare
decisis and reversed previous doctrines and decisions.10 It should
do no less in the present case.11
Santiago established a tenet that the Supreme Court may affirm a law as
constitutional, yet declare its provisions as inadequate to accomplish the
334
legislative purpose, then barred the enforcement of the law. That ruling is
erroneous, illogical, and should not be perpetuated.
II.
Following Justice Puno's clear demonstration why Santiago should not be
respected as precedent, I agree that the COMELEC's failure to take
cognizance of the petitions as mandated by Rep. Act No. 6735 constitutes
grave abuse of discretion correctible through the petitions before this
Court.
The Court has consistently held in cases such as Abes v. COMELEC12,
Sanchez v. COMELEC13, and Sambarani v. COMELEC14 that "the functions of
the COMELEC under the Constitution are essentially executive and
administrative in nature".15 More pertinently, in Buac v. COMELEC16, the
Court held that the jurisdiction of the COMELEC relative to the
enforcement and administration of a law relative to a plebiscite fell under
the jurisdiction of the poll body under its constitutional mandate "to
enforce and administer all laws and regulations relative to the conduct of
a xxx plebiscite".17
Rep. Act No. 6735 is a law relative to the conduct of a plebiscite. The
primary task of the COMELEC under Rep. Act No. 6735 is to enforce and
administer the said law, functions that are essentially executive and
administrative in nature. Even the subsequent duty of the COMELEC of
determining the sufficiency of the petitions after they have been filed is
administrative in character. By any measure, the COMELEC's failure to
perform its executive and administrative functions under Rep. Act No.
6735 constitutes grave abuse of discretion.
III.
It has been argued that the subject petitions for initiative are barred
under Republic Act No. 6735 as they allegedly embrace more than one
subject. Section 10 of Rep. Act No. 6735 classifies as a "prohibited
measure," a petition submitted to the electorate that embraces more
than one subject.18 On this point, reliance is apparently placed on the
array of provisions which are to be affected by the amendments
proposed in the initiative petition.
Section 10 of Rep. Act No. 6735 is a reflection of the long-enshrined
constitutional principle that the laws passed by Congress "shall embrace
only one subject which shall be expressed in the title thereof".19 The one-
subject requirement under the Constitution is satisfied if all the parts of
the statute are related, and are germane to the subject matter expressed
in the title, or as long as they are not inconsistent with or foreign to the
general subject and title.20 An act having a single general subject,
indicated in the title, may contain any number of provisions, no matter
how diverse they may be, so long as they are not inconsistent with or
foreign to the general subject, and may be considered in furtherance of
such subject by providing for the method and means of carrying out the
general object.21
The precedents governing the one-subject, one-title rule under the
Constitution should apply as well in the interpretation of Section 10 of
Rep. Act No. 6735. For as long as it can be established that an initiative
petition embraces a single general subject, the petition may be allowed
no matter the number of constitutional provisions proposed for
amendment if the amendments are germane to the subject of the
petition.
Both the Sigaw ng Bayan and the Lambino initiative petitions expressly
propose the changing of the form of government from bicameral-
presidential to unicameral-parliamentary. Such a proposal may strike as
comprehensive, necessitating as it will the reorganization of the
executive and legislative branches of government, nevertheless it
ineluctably encompasses only a single general subject still.
The 1987 Constitution (or any constitution for that matter) is susceptible
to division into several general spheres. To cite the broadest of these
spheres by way of example, Article III enumerates the guaranteed rights
of the people under the Bill of Rights; Articles VI, VII and VIII provide for
the organizational structure of government; while Articles II, XII, XIII &
XIV, XV and XVI enunciate policy principles of the State. What would
clearly be prohibited under Section 10 of Rep. Act No. 6735 is an initiative
335
petition that seeks to amend provisions which do not belong to the same
sphere. For example, had a single initiative petition sought not only to
change the form of government from presidential to parliamentary but
also to amend the Bill of Rights, said petition would arguably have been
barred under Section 10, as that petition ostensibly embraces more than
one subject, with each subject bearing no functional relation to the other.
But that is not the case with the present initiative petitions.
Neither can it be argued that the initiative petitions embrace more than
one subject since the proposed amendments seek to affect two separate
branches of government. The very purpose of the initiative petitions is to
fuse the powers of the executive and legislative branches of government;
hence, the amendments intended to effect such general intent
necessarily affects the two branches. If it required that to propose a shift
in government from presidential to parliamentary, the amendments to
Article VII (Executive Branch) have to be segregated to a different
petition from that which would propose amendments to Article VI
(Legislative Branch), then the result would be two initiative petitions
both subject to separate authentications, consideration and even
plebiscites, all to effect one general proposition. This scenario, which
entertains the possibility that one petition would ultimately fail while the
other succeeds, could thus allow for the risk that the executive branch
could be abolished without transferring executive power to the
legislative branch. An absurd result, indeed.
I am not even entirely comfortable with the theoretical underpinnings of
Section 10. The Constitution indubitably grants the people the right to
seek amendment of the charter through initiative, and mandates
Congress to "provide for the implementation of the exercise of this
right." In doing so, Congress may not restrict the right to initiative on
grounds that are not provided for in the Constitution. If for example the
implementing law also provides that certain provisions of the
Constitution may not be amended through initiative, that prohibition
should not be sustained. Congress is tasked with the implementation, and
not the restriction of the right to initiative.
The one-subject requirement under Section 10 is not provided for as a bar
to amendment under the Constitution. Arguments can be supplied for
the merit of such a requirement, since it would afford a measure of
orderliness when the vital question of amending the Constitution arises.
The one-subject requirement does allow the voters focus when
deliberating whether or not to vote for the amendments. These factors
of desirability nonetheless fail to detract from the fact that the one-
subject requirement imposes an additional restriction on the right to
initiative not contemplated by the Constitution. Short of invalidating the
requirement, a better course of action would be to insist upon its liberal
interpretation. After all, the Court has consistently adhered to a liberal
interpretation of the one-subject, one-title rule.22 There is no cause to
adopt a stricter interpretative rule with regard to the one-subject rule
under Section 10 of Rep. Act No. 6735.
IV.
During the hearing on the petitions, the argument was raised that
provisions of the Constitution amended through initiative would not have
the benefit of a reference source from the record of a deliberative body
such as Congress or a constitutional convention. It was submitted that
this consideration influenced the Constitutional Commission as it drafted
Section 2, Article XVII, which expressly provided that only amendments,
and not revisions, may be the subject of initiative petitions.
This argument clearly proceeds from a premise that accords supreme
value to the record of deliberations of a constitutional convention or
commission in the interpretation of the charter. Yet if the absence of a
record of deliberations stands as so serious a flaw as to invalidate or
constrict processes which change a constitution or its provisions, then
the entire initiative process authorized by the Constitution should be
scarlet-marked as well.
Even if this position can be given any weight in the consideration of these
petitions, I would like to point out that resort to the records of
deliberations is only one of many aids to constitutional construction. For
one, it should be abhorred if the provision under study is itself clear, plain,
and free from ambiguity. As the Court held in Civil Liberties Union v.
Executive Secretary:23
336
 While it is permissible in this jurisdiction to consult the debates
and proceedings of the constitutional convention in order to
arrive at the reason and purpose of the resulting Constitution,
resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the constitutional
convention "are of value as showing the views of the individual
members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did not
talk . . . We think it safer to construe the constitution from what
appears upon its face."24
Even if there is need to refer to extrinsic sources in aid of constitutional
interpretation, the constitutional record does not provide the exclusive
or definitive answer on how to interpret the provision. The intent of a
constitutional convention is not controlling by itself, and while the
historical discussion on the floor of the constitutional convention is
valuable, it is not necessarily decisive. The Court has even held in Vera v.
Avelino25 that "the proceedings of the [constitutional] convention are less
conclusive of the proper construction of the fundamental law than are
legislative proceedings of the proper construction of a statute, since in
the latter case it is the intent of the legislature that courts seek, while in
the former courts are endeavoring to arrive at the intent of the people
through the discussions and deliberations of their representatives."26 The
proper interpretation of a constitution depends more on how it was
understood by the people adopting it than the framers' understanding
thereof.27
If there is fear in the absence of a constitutional record as guide for
interpretation of any amendments adopted via initiative, such absence
would not preclude the courts from interpreting such amendments in a
manner consistent with how courts generally construe the Constitution.
For example, reliance will be placed on the other provisions of the
Constitution to arrive at a harmonized and holistic constitutional
framework. The constitutional record is hardly the Rosetta Stone that
unlocks the meaning of the Constitution.
V.
I fully agree with Justice Puno that all issues relating to the sufficiency of
the initiative petitions should be remanded to the COMELEC. Rep. Act No.
6735 clearly reposes on the COMELEC the task of determining the
sufficiency of the petitions, including the ascertainment of whether
twelve percent (12%) of all registered voters, including three percent (3%)
of registered voters in every legislative district have indeed signed the
initiative petitions.28 It should be remembered that the COMELEC had
dismissed the initiative petitions outright, and had yet to undertake the
determination of sufficiency as required by law.
It has been suggested to the end of leading the Court to stifle the
initiative petitions that the Court may at this juncture pronounce the
initiative petitions as insufficient. The derivation of the factual predicates
leading to the suggestion is uncertain, considering that the trier of facts,
the COMELEC in this instance, has yet to undertake the necessary
determination. Still, the premise has been floated that petitioners have
made sufficient admissions before this Court that purportedly established
the petitions are insufficient.
That premise is highly dubitable. Yet the more fundamental question that
we should ask, I submit, is whether it serves well on the Court to usurp
trier of facts even before the latter exercises its functions? If the Court, at
this stage, were to declare the petitions as insufficient, it would be akin to
the Court pronouncing an accused as guilty even before the lower court
trial had began.
Matugas v. COMELEC29 inveighs against the propriety of the Court
uncharacteristically assuming the role of trier of facts, and resolving
factual questions not previously adjudicated by the lower courts or
tribunals:
[P]etitioner in this case cannot "enervate" the COMELEC's
findings by introducing new evidence before this Court, which in
any case is not a trier of facts, and then ask it to substitute its
own judgment and discretion for that of the COMELEC.
The rule in appellate procedure is that a factual question may not
be raised for the first time on appeal, and documents forming no
337
 part of the proofs before the appellate court will not be
considered in disposing of the issues of an action. This is true
whether the decision elevated for review originated from a
regular court or an administrative agency or quasi-judicial body,
and whether it was rendered in a civil case, a special proceeding,
or a criminal case. Piecemeal presentation of evidence is simply
not in accord with orderly justice.30
Any present determination by the Court on the sufficiency of the
petitions constitutes in effect a trial de novo, the Justices of the Supreme
Court virtually descending to the level of trial court judges. This is an
unbecoming recourse, and it simply is not done.
VI.
The worst position this Court could find itself in is to acquiesce to a plea
that it make the choice whether to amend the Constitution or not. This is
a matter which should not be left to fifteen magistrates who have not
been elected by the people to make the choice for them.
A vote to grant the petitions is not a vote to amend the 1987 Constitution.
It is merely a vote to allow the people to directly exercise that option. In
fact, the position of Justice Puno which I share would not even guarantee
that the Lambino and Sigaw ng Bayan initiative petitions would be
submitted to the people in a referendum. The COMELEC will still have to
determine the sufficiency of the petition. Among the questions which still
have to be determined by the poll body in considering the sufficiency of
the petitions is whether twelve percent (12%) of all registered voters
nationwide, including three percent (3%) of registered voters in every
legislative district, have indeed signed the initiative petitions.31
And even should the COMELEC find the initiative petitions sufficient, the
matter of whether the Constitution should be amended would still
depend on the choice of the electorate. The oppositors are clearly queasy
about some of the amendments proposed, or the imputed motives
behind the amendments. A referendum, should the COMELEC find the
petitions as sufficient, would allow them to convey their uneasiness to
the public at large, as well as for the proponents of the amendment to
defend their proposal. The campaign period alone would allow the public
to be involved in the significant deliberation on the course our nation
should take, with the ensuing net benefit of a more informed, more
politically aware populace. And of course, the choice on whether the
Constitution should be amended would lie directly with the people. The
initiative process involves participatory democracy at its most elemental;
wherein the consequential debate would not be confined to the august
halls of Congress or the hallowed chambers of this Court, as it would spill
over to the public squares and town halls, the academic yards and the
Internet blogosphere, the dining areas in the homes of the affluent and
the impoverished alike.
The prospect of informed and widespread discussion on constitutional
change engaged in by a people who are actually empowered in having a
say whether these changes should be enacted, gives fruition to the
original vision of pure democracy, as formulated in Athens two and a half
millennia ago. The great hero of Athenian democracy, Pericles, was
recorded as saying in his famed Funeral Oration, "We differ from other
states in regarding the man who keeps aloof from public life not as 'private'
but as useless; we decide or debate, carefully and in person all matters of
policy, and we hold, not that words and deeds go ill together, but that acts
are foredoomed to failure when undertaken undiscussed."32
Unfortunately, given the highly politicized charge of the times, it has
been peddled that an act or vote that assists the initiative process is one
for the willful extinction of democracy or democratic institutions. Such a
consideration should of course properly play its course in the public
debates and deliberations attendant to the initiative process. Yet as a
result of the harum-scarum, the temptation lies heavy for a member of
this Court perturbed with the prospect of constitutional change to relieve
those anxieties by simply voting to enjoin any legal procedure that
initiates the amendment or revision of the fundamental law, even at the
expense of the people's will or what the Constitution allows. A vote so
oriented takes the conservative path of least resistance, even as it may
gain the admiration of those who do not want to see the Constitution
amended.
338
Still, the biases we should enforce as magistrates are those of the
Constitution and the elements of democracy on which our rule of law is
founded. Direct democracy, as embodied in the initiative process, is but a
culmination of the evolution over the centuries of democratic rights of
choice and self-governance. The reemergence of the Athenian
democratic ideal after centuries of tyrannical rules arrived very slowly,
the benefits parceled out at first only to favored classes. The Magna Carta
granted limited rights to self-determination and self-governance only to a
few English nobles; the American Constitution was originally intended to
give a meaningful voice only to free men, mostly Caucasian, who met the
property-holding requirements set by the states for voting. Yet even the
very idea of popular voting, limited as it may have already been within the
first few years of the American Union, met resistance from no less a
revered figure as Alexander Hamilton, to whom the progressive historian
Howard Zinn attributes these disconcerting words:
The voice of the people has been said to be the voice of God; and
however generally this maxim has been quoted and believed, it is
not true in fact. The people are turbulent and changing; they
seldom judge or determine right. Give therefore to the first class a
distinct permanent share in the government Can a democratic
assembly who annually revolve in the mass of the people be
supposed steadily to pursue the public good? Nothing but a
permanent body can check the imprudence of democracy33
This utterly paternalistic and bigoted view has not survived into the
present age of modern democracy where a person's poverty, color, or
gender no longer impedes the exercise of full democratic rights. Yet a
democracy that merely guarantees its citizens the right to live their lives
freely is incomplete if there is no corresponding allowance for a means by
which the people have a direct choice in determining their country's
direction. Initiative as a mode of amending a constitution may seem
incompatible with representative democracy, yet it embodies an even
purer form of democracy. Initiative, which our 1987 Constitution saw fit
to grant to the people, is a progressive measure that is but a continuation
of the line of evolution of the democratic ideal.
By allowing the sovereign people to directly propose and enact
constitutional amendments, the initiative process should be
acknowledged as the purest implement of democratic rule under law.
This right granted to over sixty million Filipinos cannot be denied by the
votes of less than eight magistrates for reasons that bear no cogitation
on the Constitution.
I VOTE to GRANT the petitions.
DANTE O. TINGA
Associate Justice
____________________
EN BANC
G. R. No. 174153
RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952
REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L.
ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN
MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL
WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS,
Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD, RENE
B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V.
OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC.,
ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO
UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA,
GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO
STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO,
and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO
AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI
ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON,
339
FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P.
AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER
AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEA III,
JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY
ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO
ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE
PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I.
CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANOTNIO L.
SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE
PHILIPPINES, Represented by its President, MANUEL VILLAR, JR.,
Oppositors-Intervenors;
G.R. No. 174299
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q.
SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S.
ABALOS, SR., and Commissioners RESSURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V.
SARMIENTO, and John Doe and Peter Doe, Respondents.
x ---------------------------------------------------------------------------------------- x
DISSENTING OPINION
CHICO-NAZARIO, J.:
"The people made the constitution, and the people can unmake it. It is the
creature of their will, and lives only by their will. But this supreme and
irresistible power to make or unmake, resides only in the whole body of the
people; not in any subdivision of them."
-- Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264, 389, 5 L ed.
257, 287.
I express my concurrence in the discussions and conclusions presented in
the persuasive and erudite dissent of Justice Reynato S. Puno. However, I
make some additional observations in connection with my concurrence.
While it is but proper to accord great respect and reverence to the
Philippine Constitution of 1987 for being the supreme law of the land, we
should not lose sight of the truth that there is an ultimate authority to
which the Constitution is also subordinate the will of the people. No less
than its very first paragraph, the Preamble,1 expressly recognizes that the
Constitution came to be because it was ordained and promulgated by the
sovereign Filipino people. It is a principle reiterated yet again in Article II,
Section 1, of the Constitution, which explicitly declares that "[t]he
Philippines is a democratic and republican State. Sovereignty resides in
the people and all government authority emanates from them." Thus, the
resolution of the issues and controversies raised by the instant Petition
should be guided accordingly by the foregoing principle.
If the Constitution is the expression of the will of the sovereign people,
then, in the event that the people change their will, so must the
Constitution be revised or amended to reflect such change. Resultantly,
the right to revise or amend the Constitution inherently resides in the
sovereign people whose will it is supposed to express and embody. The
Constitution itself, under Article XVII, provides for the means by which
the revision or amendment of the Constitution may be proposed and
ratified.
Under Section 1 of the said Article, proposals to amend or revise the
Constitution may be made (a) by Congress, upon a vote of three-fourths
of all its Members, or (b) by constitutional convention. The Congress and
the constitutional convention possess the power to propose
amendments to, or revisions of, the Constitution not simply because the
Constitution so provides, but because the sovereign people had chosen
to delegate their inherent right to make such proposals to their
representatives either through Congress or through a constitutional
convention.
On the other hand, the sovereign people, well-inspired and greatly
empowered by the People Power Revolution of 1986, reserved to
340
themselves the right to directly propose amendments to the Constitution
through initiative, to wit
SEC. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters,
of which every legislative district must be represented by at least
three per centum of the registered voters therein. No
amendment under this section shall be authorized within five
years following the ratification of this Constitution nor oftener
than once every five years thereafter.
The Congress shall provide for the implementation of the exercise
of this right.2
The afore-quoted section does not confer on the Filipino people the right
to amend the Constitution because, as previously discussed, such right is
inherent in them. The section only reduces into writing this right to
initiate amendments to the Constitution where they collectively and
willfully agreed in the manner by which they shall exercise this right: (a)
through the filing of a petition; (b) supported by at least twelve percent
(12%) of the total number of registered voters nationwide; (c) with each
legislative district represented by at least three percent (3%) of the
registered voters therein; (d) subject to the limitation that no such
petition may be filed within five years after the ratification of the
Constitution, and not oftener than once every five years thereafter; and
(e) a delegation to Congress of the authority to provide the formal
requirements and other details for the implementation of the right.
It is my earnest opinion that the right of the sovereign people to directly
propose amendments to the Constitution through initiative is more
superior than the power they delegated to Congress or to a
constitutional convention to amend or revise the Constitution. The
initiative process gives the sovereign people the voice to express their
collective will, and when the people speak, we must be ready to listen.
Article XVII, Section 2 of the Constitution recognizes and guarantees the
sovereign people's right to initiative, rather than limits it. The enabling
law which Congress has been tasked to enact must give life to the said
provision and make the exercise of the right to initiative possible, not
regulate, limit, or restrict it in any way that would render the people's
option of resorting to initiative to amend the Constitution more stringent,
difficult, and less feasible, as compared to the other constitutional means
to amend or revise the Constitution. In fact, it is worth recalling that
under Article VI, Section 1 of the Constitution, the legislative power of
Congress is limited to the extent reserved to the people by the
provisions on initiative and referendum.
It is with this frame of mind that I review the issues raised in the instant
Petitions, and which has led me to the conclusions, in support of the
dissent of Justice Puno, that (a) The Commission on Election (COMELEC)
had indeed committed grave abuse of discretion in summarily dismissing
the petition for initiative to amend the Constitution filed by herein
petitioners Raul L. Lambino and Erico B. Aumentado; (b) The Court should
revisit the pronouncements it made in Santiago v. Commission on
Elections;3 (c) It is the sovereign people's inherent right to propose
changes to the Constitution, regardless of whether they constitute
merely amendments or a total revision thereof; and (d) The COMELEC
should take cognizance of Lambino and Aumentado's petition for
initiative and, in the exercise of its jurisdiction, determine the factual
issues raised by the oppositors before this Court.
I
The COMELEC had indeed committed grave abuse of discretion when it
summarily dismissed Lambino and Aumentado's petition for initiative
entirely on the basis of the Santiago case which, allegedly, permanently
enjoined it from entertaining or taking cognizance of any petition for
initiative to amend the Constitution in the absence of a sufficient law.
After a careful reading, however, of the Santiago case, I believe in earnest
that the permanent injunction actually issued by this Court against the
COMELEC pertains only to the petition for initiative filed by Jesus S.
Delfin, and not to all subsequent petitions for initiative to amend the
Constitution.
The Conclusion4 in the majority opinion in the Santiago case reads
341
CONCLUSION
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of
any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the
implementation of the system.
We feel, however, that the system of initiative to propose
amendments to the Constitution should no longer be kept in the
cold; it should be given flesh and blood, energy and strength.
Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the
right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of
initiative on amendments to the Constitution, and to have failed
to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the
Commission on Elections prescribing rules and regulations on the
conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS
the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is
made permanent as against the Commission on Elections, but is
LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
It is clear from the fallo, as it is reproduced above, that the Court made
permanent the Temporary Restraining Order (TRO) it issued on 18
December 1996 against the COMELEC. The said TRO enjoined the
COMELEC from proceeding with the Delfin Petition, and Alberto and
Carmen Pedrosa from conducting a signature drive for people's initiative.5
It was this restraining order, more particularly the portion thereof
referring to the Delfin Petition, which was expressly made permanent by
the Court. It would seem to me that the COMELEC and all other
oppositors to Lambino and Aumentado's petition for initiative gave
unwarranted significance and weight to the first paragraph of the
Conclusion in the Santiago case. The first and second paragraphs of the
Conclusion, preceding the dispositive portion, merely express the
opinion of the ponente; while the definite orders of the Court for
implementation are found in the dispositive portion.
We have previously held that
The dispositive portion or the fallo is what actually constitutes the
resolution of the court and which is the subject of execution,
although the other parts of the decision may be resorted to in
order to determine the ratio decidendi for such a resolution.
Where there is conflict between the dispositive part and the
opinion of the court contained in the text of the decision, the
former must prevail over the latter on the theory that the
dispositive portion is the final order while the opinion is merely a
statement ordering nothing. Hence execution must conform
more particularly to that ordained or decreed in the dispositive
portion of the decision.6
Is there a conflict between the first paragraph of the Conclusion and the
dispositive portion of the Santiago case? Apparently, there is. The first
paragraph of the Conclusion states that the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until the
enactment of a valid law. On the other hand, the fallo only makes
permanent the TRO7 against COMELEC enjoining it from proceeding with
the Delfin Petition. While the permanent injunction contemplated in the
Conclusion encompasses all petitions for initiative on amendments to the
342
Constitution, the fallo is expressly limited to the Delfin Petition. To
resolve the conflict, the final order of the Court as it is stated in the
dispositive portion or the fallo should be controlling.
Neither can the COMELEC dismiss Lambino and Aumentado's petition for
initiative on the basis of this Court's Resolution, dated 23 September
1997, in the case of People's Initiative for Reform, Modernization and
Action (PIRMA) v. The Commission on Elections, et al.8 The Court therein
found that the COMELEC did not commit grave abuse of discretion in
dismissing the PIRMA Petition for initiative to amend the Constitution for
it only complied with the Decision in the Santiago case.
It is only proper that the Santiago case should also bar the PIRMA Petition
on the basis of res judicata because PIRMA participated in the
proceedings of the said case, and had knowledge of and, thus, must be
bound by the judgment of the Court therein. As explained by former Chief
Justice Hilario G. Davide, Jr. in his separate opinion to the Resolution in
the PIRMA case
First, it is barred by res judicata. No one aware of the pleadings
filed here and in Santiago v. COMELEC (G.R. No. 127325, 19 March
1997) may plead ignorance of the fact that the former is
substantially identical to the latter, except for the reversal of the
roles played by the principal parties and inclusion of additional,
yet not indispensable, parties in the present petition. But plainly,
the same issues and reliefs are raised and prayed for in both
cases.
The principal petitioner here is the PEOPLE'S INITIATIVE FOR
REFORM, MODERNIZATION, AND ACTION (PIRMA) and Spouses
ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-
described as "a non-stock, non-profit organization duly organized
and existing under Philippine laws with office address at Suite
403, Fedman Suites, 199 Salcedo Street, Legaspi Village, Makati
City," with "ALBERTO PEDROSA and CARMEN PEDROSA" as
among its "officers." In Santiago, the PEDROSAS were made
respondents as founding members of PIRMA which, as alleged in
the body of the petition therein, "proposes to undertake the
signature drive for a people's initiative to amend the
Constitution." In Santiago then, the PEDROSAS were sued in their
capacity as founding members of PIRMA.
The decision in Santiago specifically declared that PIRMA was duly
represented at the hearing of the Delfin petition in the COMELEC.
In short, PIRMA was intervenor-petitioner therein. Delfin alleged
in his petition that he was a founding member of the Movement
for People's Initiative, and under footnote no. 6 of the decision, it
was noted that said movement was "[l]ater identified as the
People's Initiative for Reforms, Modernization and Action, or
PIRMA for brevity." In their Comment to the petition in Santiago,
the PEDROSA'S did not deny that they were founding members
of PIRMA, and by their arguments, demonstrated beyond a
shadow of a doubt that they had joined Delfin or his cause.
No amount of semantics may then shield herein petitioners
PIRMA and the PEDROSAS, as well as the others joining them,
from the operation of the principle of res judicata, which needs no
further elaboration.9
While the Santiago case bars the PIRMA case because of res judicata, the
same cannot be said to the Petition at bar. Res judicata is an absolute bar
to a subsequent action for the same cause; and its requisites are: (a) the
former judgment or order must be final; (b) the judgment or order must
be one on the merits; (c) it must have been rendered by a court having
jurisdiction over the subject matter and parties; and (d) there must be
between the first and second actions, identity of parties, of subject
matter and of causes of action.10
Even though it is conceded that the first three requisites are present
herein, the last has not been complied with. Undoubtedly, the Santiago
case and the present Petition involve different parties, subject matter,
and causes of action, and the former should not bar the latter.
In the Santiago case, the petition for initiative to amend the Constitution
was filed by Delfin alone. His petition does not qualify as the initiatory
pleading over which the COMELEC can acquire jurisdiction, being
343
unsupported by the required number of registered voters, and actually
imposing upon the COMELEC the task of gathering the voters' signatures.
In the case before us, the petition for initiative to amend the Constitution
was filed by Lambino and Aumentado, on behalf of the 6.3 million
registered voters who affixed their signatures on the signature sheets
attached thereto. Their petition prays that the COMELEC issue an Order
1. Finding the petition to be sufficient pursuant to Section 4,
Article XVII of the 1987 Constitution;
2. Directing the publication of the petition in Filipino and English
at least twice in newspapers of general and local circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later
than ninety days after the Certification by the COMELEC of the
sufficiency of the petition, to allow the Filipino people to express
their sovereign will on the proposition.
Although both cases involve the right of the people to initiate
amendments to the Constitution, the personalities concerned and the
other factual circumstances attendant in the two cases differ. Also
dissimilar are the particular prayer and reliefs sought by the parties from
the COMELEC, as well as from this Court. For these reasons, I find that the
COMELEC acted with grave abuse of discretion when it summarily
dismissed the petition for initiative filed by Lambino and Aumentado. It
behooves the COMELEC to accord due course to a petition which on its
face complies with the rudiments of the law. COMELEC was openly
negligent in summarily dismissing the Lambino and Aumentado petition.
The haste by which the instant Petition was struck down is characteristic
of bad faith, which, to my mind, is a patent and gross evasion of
COMELEC's positive duty. It has so obviously copped out of its duty and
responsibility to determine the sufficiency thereof and sought protection
and justification for its craven decision in the supposed permanent
injunction issued against it by the Court in the Santiago case. The
COMELEC had seemingly expanded the scope and application of the said
permanent injunction, reading into it more than what it actually states,
which is surprising, considering that the Chairman and majority of the
members of COMELEC are lawyers who should be able to understand and
appreciate, more than a lay person, the legal consequences and
intricacies of the pronouncements made by the Court in the Santiago
case and the permanent injunction issued therein.
No less than the Constitution itself, under the second paragraph of Article
XVII, Section 4, imposes upon the COMELEC the mandate to set a date for
plebiscite after a positive determination of the sufficiency of a petition for
initiative on amendments to the Constitution, viz
SEC. 4. x x x
Any amendment under Section 2 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall
be held not earlier than sixty days nor later than ninety days after
the certification by the Commission on Elections of the sufficiency
of the petition.
As a rule, the word "shall" commonly denotes an imperative obligation
and is inconsistent with the idea of discretion, and that the presumption
is that the word "shall" when used, is mandatory.11 Under the above-
quoted constitutional provision, it is the mandatory or imperative
obligation of the COMELEC to (a) determine the sufficiency of the
petition for initiative on amendments to the Constitution and issue a
certification on its findings; and (b) in case such petition is found to be
sufficient, to set the date for the plebiscite on the proposed amendments
not earlier than 60 days nor later than 90 days after its certification. The
COMELEC should not be allowed to shun its constitutional mandate
under the second paragraph of Article XVII, Section 4, through the
summary dismissal of the petition for initiative filed by Lambino and
Aumentado, when such petition is supported by 6.3 million signatures of
registered voters. Should all of these signatures be authentic and
representative of the required percentages of registered voters for every
legislative district and the whole nation, then the initiative is a true and
legitimate expression of the will of the people to amend the Constitution,
and COMELEC had caused them grave injustice by silencing their voice
based on a patently inapplicable permanent injunction.
II
344
We should likewise take the opportunity to revisit the pronouncements
made by the Court in its Decision in the Santiago case, especially as
regards the supposed insufficiency or inadequacy of Republic Act No.
6735 as the enabling law for the implementation of the people's right to
initiative on amendments to the Constitution.
The declaration of the Court that Republic Act No. 6735 is insufficient or
inadequate actually gave rise to more questions rather than answers, due
to the fact that there has never been a judicial precedent wherein the
Court invalidated a law for insufficiency or inadequacy. The confusion
over such a declaration thereby impelled former Chief Justice Davide, Jr.,
the ponente in the Santiago case, to provide the following clarification in
his separate opinion to the Resolution in the PIRMA case, thus
Simply put, Santiago did, in reality, declare as unconstitutional
that portion of R.A. No. 6735 relating to Constitutional initiatives
for failure to comply with the "completeness and sufficient
standard tests" with respect to permissible delegation of
legislative power or subordinate legislation. However petitioners
attempt to twist the language in Santiago, the conclusion is
inevitable; the portion of R.A. No. 6735 was held to be
unconstitutional.
It is important to note, however, that while the Decision in the Santiago
case pronounced repeatedly that Republic Act No. 6735 was insufficient
and inadequate, there is no categorical declaration therein that the said
statute was unconstitutional. The express finding that Republic Act No.
6735 is unconstitutional can only be found in the separate opinion of
former Chief Justice Davide to the Resolution in the PIRMA case, which
was not concurred in by the other members of the Court.
Even assuming arguendo that the declaration in the Santiago case, that
Republic Act No. 6735 is insufficient and inadequate, is already
tantamount to a declaration that the statute is unconstitutional, it was
rendered in violation of established rules in statutory construction, which
state that
[A]ll presumptions are indulged in favor of constitutionality; one
who attacks a statute, alleging unconstitutionality must prove its
invalidity beyond a reasonable doubt (Victoriano v. Elizalde Rope
Workers' Union, 59 SCRA 54 [19741). In fact, this Court does not
decide questions of a constitutional nature unless that question is
properly raised and presented in appropriate cases and is
necessary to a determination of the case, i.e., the issue of
constitutionality must be lis mota presented (Tropical Homes v.
National Housing Authority, 152 SCRA 540 [1987]).
First, the Court, in the Santiago case, could have very well avoided the
issue of constitutionality of Republic Act No. 6735 by ordering the
COMELEC to dismiss the Delfin petition for the simple reason that it does
not constitute an initiatory pleading over which the COMELEC could
acquire jurisdiction. And second, the unconstitutionality of Republic Act
No. 6735 has not been adequately shown. It was by and large merely
inferred or deduced from the way Republic Act No. 6735 was worded and
the provisions thereof arranged and organized by Congress. The
dissenting opinions rendered by several Justices in the Santiago case
reveal the other side to the argument, adopting the more liberal
interpretation that would allow the Court to sustain the constitutionality
of Republic Act No. 6735. It would seem that the majority in the Santiago
case failed to heed the rule that all presumptions should be resolved in
favor of the constitutionality of the statute.
The Court, acting en banc on the Petition at bar, can revisit its Decision in
the Santiago case and again open to judicial review the constitutionality
of Republic Act No. 6735; in which case, I shall cast my vote in favor of its
constitutionality, having satisfied the completeness and sufficiency of
standards tests for the valid delegation of legislative power. I fully agree
in the conclusion made by Justice Puno on this matter in his dissenting
opinion12 in the Santiago case, that reads
R.A. No. 6735 sufficiently states the policy and the standards to
guide the COMELEC in promulgating the law's implementing rules
and regulations of the law. As aforestated, Section 2 spells out
the policy of the law; viz: "The power of the people under a
system of initiative and referendum to directly propose, enact,
345
 approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed." Spread out all over R.A. No. 6735
are the standards to canalize the delegated power to the
COMELEC to promulgate rules and regulations from overflowing.
Thus, the law states the number of signatures necessary to start a
people's initiative, directs how initiative proceeding is
commenced, what the COMELEC should do upon filing of the
petition for initiative, how a proposition is approved, when a
plebiscite may be held, when the amendment takes effect, and
what matters may not be the subject of any initiative. By any
measure, these standards are adequate.
III
The dissent of Justice Puno has already a well-presented discourse on the
difference between an "amendment" and a "revision" of the
Constitution. Allow me also to articulate my additional thoughts on the
matter.
Oppositors to Lambino and Aumentado's petition for initiative argue that
the proposed changes therein to the provisions of the Constitution
already amount to a revision thereof, which is not allowed to be done
through people's initiative; Article XVII, Section 2 of the Constitution on
people's initiative refers only to proposals for amendments to the
Constitution. They assert the traditional distinction between an
amendment and a revision, with amendment referring to isolated or
piecemeal change only, while revision as a revamp or rewriting of the
whole instrument.13
However, as pointed out by Justice Puno in his dissent, there is no
quantitative or qualitative test that can establish with definiteness the
distinction between an amendment and a revision, or between a
substantial and simple change of the Constitution.
The changes proposed to the Constitution by Lambino and Aumentado's
petition for initiative basically affect only Article VI on the Legislative
Department and Article VII on the Executive Department. While the
proposed changes will drastically alter the constitution of our
government by vesting both legislative and executive powers in a
unicameral Parliament, with the President as the Head of State and the
Prime Minister exercising the executive power; they would not essentially
affect the other 16 Articles of the Constitution. The 100 or so changes
counted by the oppositors to the other provisions of the Constitution are
constituted mostly of the nominal substitution of one word for the other,
such as Parliament for Congress, or Prime Minister for President. As
eloquently pointed out in the dissent of Justice Puno, the changes
proposed to transform our form of government from bicameral-
presidential to unicameral-parliamentary, would not affect the
fundamental nature of our state as a democratic and republican state. It
will still be a representative government where officials continue to be
accountable to the people and the people maintain control over the
government through the election of members of the Parliament.
Furthermore, should the people themselves wish to change a substantial
portion or even the whole of the Constitution, what or who is to stop
them? Article XVII, Section 2 of the Constitution which, by the way it is
worded, refers only to their right to initiative on amendments of the
Constitution? The delegates to the Constitutional Convention who,
according to their deliberations, purposely limited Article XVII, Section 2
of the Constitution to amendments? This Court which has the jurisdiction
to interpret the provision? Bearing in mind my earlier declaration that the
will of the sovereign people is supreme, there is nothing or no one that
can preclude them from initiating changes to the Constitution if they
choose to do so. To reiterate, the Constitution is supposed to be the
expression and embodiment of the people's will, and should the people's
will clamor for a revision of the Constitution, it is their will which should
prevail. Even the fact that the people ratified the 1987 Constitution,
including Article XVII, Section 2 thereof, as it is worded, should not
prevent the exercise by the sovereign people of their inherent right to
change the Constitution, even if such change would be tantamount to a
substantial amendment or revision thereof, for their actual exercise of
the said right should be a clear renunciation of the limitation which the
said provision imposes upon it. It is the inherent right of the people as
sovereign to change the Constitution, regardless of the extent thereof.
346
IV

Lastly, I fail to see the injustice in allowing the COMELEC to give due
course to and take cognizance of Lambino and Aumentado's petition for
initiative to amend the Constitution. I reiterate that it would be a greater
evil if one such petition which is ostensibly supported by the required
number of registered voters all over the country, be summarily dismissed.

Giving due course and taking cognizance of the petition would not
necessarily mean that the same would be found sufficient and set for
plebiscite. The COMELEC still faces the task of reviewing the petition to
determine whether it complies with the requirements for a valid exercise
of the right to initiative. Questions raised by the oppositors to the
petition, such as those on the authenticity of the registered voters'
signatures or compliance with the requisite number of registered voters
for every legislative district, are already factual in nature and require the
reception and evaluation of evidence of the parties. Such questions are
best presented and resolved before the COMELEC since this Court is not a
trier of facts.

In view of the foregoing, I am of the position that the Resolution of the

COMELEC dated 31 August 2006 denying due course to the Petition for
Initiative filed by Lambino and Aumentado be reversed and set aside for
having been issued in grave abuse of discretion, amounting to lack of
jurisdiction, and that the Petition be remanded to the COMELEC for
further proceedings.

In short, I vote to GRANT the petition for Initiative of Lambino and

Aumentado.

MINITA V. CHICO-NAZARIO
Associate Justice

347
EN BANC The issue of the people's power to propose amendments to the
Constitution was once discussed in the landmark case of Santiago v.
G.R. No. 174153 October 25, 2006 COMELEC.1 Almost a decade later, the issue is once again before the Court,
and I firmly believe it is time to reevaluate the pronouncements made in
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 that case.
REGISTERED VOTERS, petitioners, vs. The COMMISSION ON ELECTIONS,
respondent. The issue of Charter Change is one that has sharply divided the nation,
and its proponents and opponents will understandably take all measures
G.R. No. 174299 October 25, 2006 to advance their position and defeat that of their opponents. The wisdom
or folly of Charter Change does not concern the Court. The only thing that
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. the Court must review is the validity of the present step taken by the
SAGUISAG, petitioners vs. COMMISSION ON ELECTIONS, Represented by proponents of Charter Change, which is the People's Initiative, as set
Chairman BENJAMIN S. ABALOS, JR., and Commissioners down in Article XVII, Sec. 2 of the 1987 Constitution:
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Amendments to this Constitution may likewise be directly
respondents. proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters,
x ---------------------------------------------------------------------------------------- x of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment
SEPARATE OPINION under this section shall be authorized within five years following
the ratification of this Constitution nor oftener than once every
VELASCO, JR., J.: five years thereafter.

Introduction
The fate of every democracy, of every
government based on the Sovereignty of the
people, depends on the choices it makes between
these opposite principles: absolute power on the
one hand, and on the other the restraints of
legality and the authority of tradition.
John Acton
In this thorny matter of the people's initiative, I concur with the erudite
and highly persuasive opinion of Justice Reynato S. Puno upholding the
people's initiative and raise some points of my own.
The Congress shall provide for the implementation of the exercise
of this right.
In the Santiago case, the Court discussed whether the second paragraph
of that section had been fulfilled. It determined that Congress had not
provided for the implementation of the exercise of the people's initiative,
when it held that Republic Act No. 6735, or "The Initiative and
Referendum Act," was "inadequate to cover the system of initiative on
amendments to the Constitution, and to have failed to provide sufficient
standard for subordinate legislation."2
With all due respect to those Justices who made that declaration, I must
disagree.

348
Republic Act No. 6735 is the proper law for proposing constitutional
amendments and it should not have been considered inadequate.
The decision in Santiago focused on what it perceived to be fatal flaws in
the drafting of the law, in the failings of the way the law was structured,
to come to the conclusion that the law was inadequate. The Court itself
recognized the legislators' intent, but disregarded this intent. The law
was found wanting. The Court then saw the inclusion of the Constitution
in RA 6735 as an afterthought. However, it was included, and it should
not be excluded by the Court via a strained analysis of the law. The
difficult construction of the law should not serve to frustrate the intent of
the framers of the 1987 Constitution: to give the people the power to
propose amendments as they saw fit. It is a basic precept in statutory
construction that the intent of the legislature is the controlling factor in
the interpretation of a statute.3 The intent of the legislature was clear,
and yet RA 6735 was declared inadequate. It was not specifically struck
down or declared unconstitutional, merely incomplete. The Court focused
on what RA 6735 was not, and lost sight of what RA 6735 was.
It is my view that the reading of RA 6735 in Santiago should have been
more flexible. It is also a basic precept of statutory construction that
statutes should be construed not so much according to the letter that
killeth but in line with the purpose for which they have been enacted.4
The reading of the law should not have been with the view of its defeat,
but with the goal of upholding it, especially with its avowed noble
purpose.
Congress has done its part in empowering the people themselves to
propose amendments to the Constitution, in accordance with the
Constitution itself. It should not be the Supreme Court that stifles the
people, and lets their cries for change go unheard, especially when the
Constitution itself grants them that power.
The court's ruling in the Santiago case does not bar the present petition
because the fallo in the Santiago case is limited to the Delfin petition.
The Santiago case involved a petition for prohibition filed by Miriam
Defensor-Santiago, et al., against the COMELEC, et al., which sought to
prevent the COMELEC from entertaining the "Petition to Amend the
Constitution, to Lift Term Limits of Elective Officials, by People's
Initiative" filed by Atty. Jesus Delfin. In the body of the judgment, the
Court made the following conclusion, viz:
This petition must then be granted and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of
any petition or initiative on amendments on the Constitution until
a sufficient law shall have been validly enacted to provide for the
implementation of the system (emphasis supplied).
We feel, however, that the system of initiative to propose
amendments to the Constitution should no longer be kept in the
cold; it should be given flesh and blood, energy and strength.
Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the
right of the people under that system.
In the said case, the Court's fallo states as follows:
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R. A. 6735 inadequate to cover the system of
initiative on amendments to the Constitution, and to have failed
to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolutions No. 2300 of the
Commission on Elections prescribing rules and regulations on the
conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS
the DELFIN petition (UND-96-037).
349
 The Temporary Restraining Order issued on 18 December 1996 is
made permanent as against the Commission on Elections, but is
LIFTED against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
The question now is if the ruling in Santiago is decisive in this case. It is
elementary that when there is conflict between the dispositive portion or
fallo of the decision and the opinion of the court contained in the text or
body of the judgment, the former prevails over the latter. An order of
execution is based on the disposition, not on the body, of the decision.5
The dispositive portion is its decisive resolution; thus, it is the subject of
execution. The other parts of the decision may be resorted to in order to
determine the ratio decidendi for the disposition. Where there is conflict
between the dispositive part and the opinion of the court contained in
the text or body of the decision, the former must prevail over the latter
on the theory that the dispositive portion is the final order, while the
opinion is merely a statement ordering nothing. Hence, the execution
must conform with that which is ordained or decreed in the dispositive
portion of the decision.6
A judgment must be distinguished from an opinion. The latter is an
informal expression of the views of the court and cannot prevail against
its final order or decision. While the two may be combined in one
instrument, the opinion forms no part of the judgment. So there is a
distinction between the findings and conclusions of a court and its
Judgment. While they may constitute its decision and amount to the
rendition of a judgment, they are not the judgment itself. It is not
infrequent that the grounds of a decision fail to reflect the exact views of
the court, especially those of concurring justices in a collegiate court. We
often encounter in judicial decisions lapses, findings, loose statements
and generalities which do not bear on the issues or are apparently
opposed to the otherwise sound and considered result reached by the
court as expressed in the dispositive part, so called, of the decision.7
Applying the foregoing argument to the Santiago case, it immediately
becomes apparent that the disposition in the latter case categorically
made permanent the December 18, 1996 Temporary Restraining Order
issued against the COMELEC in the Delfin petition but did NOT formally
incorporate therein any directive PERMANENTLY enjoining the COMELEC
"from entertaining or taking cognizance of any petition for initiative on
amendments." Undeniably, the perpetual proscription against the
COMELEC from assuming jurisdiction over any other petition on Charter
Change through a People's Initiative is just a conclusion and cannot bind
the poll body, for such unending ban would trench on its constitutional
power to enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and recall under
Section 2, Article IX of the Constitution. RA 6735 gave the COMELEC the
jurisdiction to determine the sufficiency of the petition on the initiative
under Section 8, Rule 11 and the form of the petition under Section 3, Rule
I; hence, it cannot be barred from entertaining any such petition.
In sum, the COMELEC still retains its jurisdiction to take cognizance of any
petition on initiative under RA 6735 and it can rule on the petition and its
action can only be passed upon by the Court when the same is elevated
through a petition for certiorari. COMELEC cannot be barred from acting
on said petitions since jurisdiction is conferred by law (RA 6735) and said
law has not been declared unconstitutional and hence still valid though
considered inadequate in the Santiago case.
Respondents, however, claim that the Court in the subsequent case of
PIRMA v. Commission on Elections8 confirmed the statement of the Court
in the Santiago case that the COMELEC was "permanently enjoined from
entertaining or taking cognizance of any petition for initiative on
amendments." Much reliance is placed on the ruling contained in a
Minute Resolution which reads:
The Court ruled, first, by a unanimous vote, that no grave abuse
of Discretion could be attributed to the public respondent
COMELEC in Dismissing the petition filed by PIRMA therein, it
appearing that it only Complied with the DISPOSITIONS in the
Decision of this Court in G.R. No. 127325, promulgated on March
19, 1997, and its Resolution of June 10, 1997.
350
Take note that the Court specifically referred to "dispositions" in the
March 19, 1997 Decision. To reiterate, the dispositions in the Santiago
case decision refer specifically to the December 18, 1996 TRO being made
permanent against the COMELEC but do not pertain to a permanent
injunction against any other petition for initiative on amendment. Thus,
what was confirmed or even affirmed in the Minute Resolution in the
PIRMA case pertains solely to the December 18, 1996 TRO which became
permanent, the declaration of the inadequacy of RA 6735, and the
annulment of certain parts of Resolution No. 2300 but certainly not the
alleged perpetual injunction against the initiative petition. Thus, the
resolution in the PIRMA case cannot be considered res judicata to the
Lambino petition.
Amendment or Revision
One last matter to be considered is whether the petition may be allowed
under RA 6735, since only amendments to the Constitution may be the
subject of a people's initiative.
The Lambino petition cannot be considered an act of revising the
Constitution; it is merely an attempt to amend it. The term amendment
has to be liberally construed so as to effectuate the people's efforts to
amend the Constitution.
As an eminent constitutionalist, Dean Vicente G. Sinco,9 explained:
Strictly speaking, the act of revising a constitution involves
alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important
provisions. But whatever results the revision may produce, the
factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention
and plan must contemplate a consideration of all the provisions
of the constitution to determine which one should be altered or
suppressed or whether the whole document should be replaced
with an entirely new one.
The act of amending a constitution, on the other hand, envisages
a change of only a few specific provisions. The intention of an act
to amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather
is to improve specific parts of the existing constitution or to add
to it provisions deemed essential on account of changed
conditions or to suppress portions of it that seem obsolete, or
dangerous, or misleading in their effect.
In this case, the Lambino petition is not concerned with rewriting the
entire Constitution. It was never its intention to revise the whole
Constitution. It merely concerns itself with amending a few provisions in
our fundamental charter.
When there are gray areas in legislation, especially in matters that pertain
to the sovereign people's political rights, courts must lean more towards
a more liberal interpretation favoring the people's right to exercise their
sovereign power.
Conclusion
Sovereignty residing in the people is the highest form of sovereignty and
thus deserves the highest respect even from the courts. It is not
something that can be overruled, set aside, ignored or stomped over by
whatever amount of technicalities, blurred or vague provisions of the
law.
As I find RA 6735 to be adequate as the implementing law for the
People's Initiative, I vote to grant the petition in G.R. No. 174153 and
dismiss the petition in G.R. No. 174299. The Amended Petition for
Initiative filed by petitioners Raul L. Lambino and Erico B. Aumentado
should be remanded to the COMELEC for determination whether or not
the petition is sufficient under RA 6735, and if the petition is sufficient, to
schedule and hold the necessary plebiscite as required by RA 6735.
351
It is time to let the people's voice be heard once again as it was twenty
years ago. And should this voice demand a change in the Constitution, the
Supreme Court should not be one to stand in its way.
PRESBITERO J. VELASCO, JR.
Associate Justice
Footnotes
1
Including Sigaw ng Bayan and Union of Local Authorities of the
Philippines (ULAP).
2
This provision states: "Requirements. x x x x
(b) A petition for an initiative on the 1987 Constitution must have
at least twelve per centum (12%) of the total number of registered
voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered
voters therein. Initiative on the Constitution may be exercised
only after five (5) years from the ratification of the 1987
Constitution and only once every five (5) years thereafter.
(c) The petition shall state the following:
c.1. contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be;
c.2. the proposition;
c.3. the reason or reasons therefor;
c.4. that it is not one of the exceptions provided herein;
c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary in not more than one hundred (100)
words which shall be legibly written or printed at the top of every
page of the petition."
3
This provision states: "Verification of Signatures. The Election
Registrar shall verify the signatures on the basis of the registry list of
voters, voters' affidavits and voters identification cards used in the
immediately preceding election."
4
Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI will be changed thus:
Section 1. (1) The legislative and executive powers shall be vested
in a unicameral Parliament which shall be composed of as many
members as may be provided by law, to be apportioned among
the provinces, representative districts, and cities in accordance
with the number of their respective inhabitants, with at least
three hundred thousand inhabitants per district, and on the basis
of a uniform and progressive ratio. Each district shall comprise, as
far as practicable, contiguous, compact and adjacent territory,
and each province must have at least one member.
(2) Each Member of Parliament shall be a natural-born citizen of
the Philippines, at least twenty-five years old on the day of the
election, a resident of his district for at least one year prior
thereto, and shall be elected by the qualified voters of his district
for a term of five years without limitation as to the number
thereof, except those under the party-list system which shall be
provided for by law and whose number shall be equal to twenty
per centum of the total membership coming from the
parliamentary districts.
5
Sections 1, 2, 3, and 4 of Article VII will be changed thus:
Section 1. There shall be a President who shall be the Head of State. The
executive power shall be exercised by a Prime Minister, with the
assistance of the Cabinet. The Prime Minister shall be elected by a
352
majority of all the Members of Parliament from among themselves. He
shall be responsible to the Parliament for the program of government.
6
Sections 1-5 of the Transitory Provisions read:
Section 1. (1) The incumbent President and Vice President shall serve until
the expiration of their term at noon on the thirtieth day of June 2010 and
shall continue to exercise their powers under the 1987 Constitution unless
impeached by a vote of two thirds of all the members of the interim
parliament.
(2) In case of death, permanent disability, resignation or removal
from office of the incumbent President, the incumbent Vice
President shall succeed as President. In case of death, permanent
disability, resignation or removal from office of both the
incumbent President and Vice President, the interim Prime
Minister shall assume all the powers and responsibilities of Prime
Minister under Article VII as amended.
Section 2. Upon the expiration of the term of the incumbent
President and Vice President, with the exception of Sections 1, 2,
3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall
hereby be amended and Sections 18 and 24 which shall be
deleted, all other sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatim up to 26, unless
they are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to conform
with a unicameral parliamentary form of government; provided,
however, that any and all references therein to "Congress",
"Senate", "House of Representatives" and "Houses of Congress"
shall be changed to read "Parliament"; that any and all references
therein to "Member[s] of Congress", "Senator[s]" or "Member[s]
of the House of Representatives" shall be changed to read as
"Member[s] of Parliament" and any and all references to the
"President" and or "Acting President" shall be changed to read
"Prime Minister".
Section 3. Upon the expiration of the term of the incumbent
President and Vice President, with the exception of Sections 1, 2, 3
and 4 of Article VII of the 1987 Constitution which are hereby
amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby
deleted, all other Sections of Article VII shall be retained and
renumbered sequentially as Section 2, ad seriatim up to 14, unless
they shall be inconsistent with Section 1 hereof, in which case
they shall be deemed amended so as to conform to a unicameral
Parliamentary System of government; provided however that any
and all references therein to "Congress", "Senate", "House of
Representatives" and "Houses of Congress" shall be changed to
read "Parliament"; that any and all references therein to
"Member[s] of Congress", "Senator[s]" or "Member[s] of the
House of Representatives" shall be changed to read as
"Member[s] of Parliament" and any and all references to the
"President" and or "Acting President" shall be changed to read
"Prime Minister".
Section 4. (1) There shall exist, upon the ratification of these
amendments, an interim Parliament which shall continue until the
Members of the regular Parliament shall have been elected and
shall have qualified. It shall be composed of the incumbent
Members of the Senate and the House of Representatives and
the incumbent Members of the Cabinet who are heads of
executive departments.
(2) The incumbent Vice President shall automatically be a Member
of Parliament until noon of the thirtieth day of June 2010. He shall
also be a member of the cabinet and shall head a ministry. He
shall initially convene the interim Parliament and shall preside
over its sessions for the election of the interim Prime Minister and
until the Speaker shall have been elected by a majority vote of all
the members of the interim Parliament from among themselves.
(3) Within forty-five days from ratification of these amendments,
the interim Parliament shall convene to propose amendments to,
or revisions of, this Constitution consistent with the principles of
local autonomy, decentralization and a strong bureaucracy.
353
 Section 5. (1) The incumbent President, who is the Chief
Executive, shall nominate, from among the members of the
interim Parliament, an interim Prime Minister, who shall be
elected by a majority vote of the members thereof. The interim
Prime Minister shall oversee the various ministries and shall
perform such powers and responsibilities as may be delegated to
him by the incumbent President.
(2) The interim Parliament shall provide for the election of the
members of Parliament, which shall be synchronized and held
simultaneously with the election of all local government officials.
Thereafter, the Vice President, as Member of Parliament, shall
immediately convene the Parliament and shall initially preside
over its session for the purpose of electing the Prime Minister,
who shall be elected by a majority vote of all
its members, from among themselves. The duly elected Prime
Minister shall continue to exercise and perform the powers,
duties and responsibilities of the interim Prime Minister until the
expiration of the term of incumbent President and Vice President.
7
As revised, Article XVIII contained a new paragraph in Section 4
(paragraph 3) and a modified paragraph 2, Section 5, thus:
Section 4. x x x x
(3) Senators whose term of office ends in 2010 shall be Members
of Parliament until noon of the thirtieth day of June 2010.
xxxx
Section 5. x x x x
(2) The interim Parliament shall provide for the election of the
members of Parliament, which shall be synchronized and held
simultaneously with the election of all local government officials.
The duly elected Prime Minister shall continue to exercise and
perform the powers, duties and responsibilities of the interim
Prime Minister until the expiration of the term of the incumbent
President and Vice President.
8
336 Phil. 848 (1997); Resolution dated 10 June 1997.
9
The COMELEC held:
We agree with the Petitioners that this Commission has the
solemn Constitutional duty to enforce and administer all laws and
regulations relative to the conduct of, as in this case, initiative.
This mandate, however, should be read in relation to the other
provisions of the Constitution particularly on initiative.
Section 2, Article XVII of the 1987 Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative, upon a petition of at
least twelve per centum of the total number of registered voters,
of which every legislative district must be represented by at least
three per centum of the registered voters therein. x x x.
The Congress shall provide for the implementation of the exercise
of this right.
The afore-quoted provision of the Constitution being a non self-
executory provision needed an enabling law for its
implementation. Thus, in order to breathe life into the
constitutional right of the people under a system of initiative to
directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolution, Congress enacted
Republic Act No. 6735.
However, the Supreme Court, in the landmark case of Santiago vs.
Commission on Elections struck down the said law for being
incomplete, inadequate, or wanting in essential terms and
354
 conditions insofar as initiative on amendments to the Constitution
is concerned.
The Supreme Court likewise declared that this Commission should
be permanently enjoined from entertaining or taking cognizance
of any petition for initiative on amendments to the Constitution
until a sufficient law shall have been validly enacted to provide for
the implementation of the system.
Thus, even if the signatures in the instant Petition appear to meet
the required minimum per centum of the total number of
registered voters, of which every legislative district is represented
by at least three per centum of the registered voters therein, still
the Petition cannot be given due course since the Supreme Court
categorically declared R.A. No. 6735 as inadequate to cover the
system of initiative on amendments to the Constitution.
This Commission is not unmindful of the transcendental
importance of the right of the people under a system of initiative.
However, neither can we turn a blind eye to the pronouncement
of the High Court that in the absence of a valid enabling law, this
right of the people remains nothing but an "empty right", and
that this Commission is permanently enjoined from entertaining
or taking cognizance of any petition for initiative on amendments
to the Constitution.
Considering the foregoing, We are therefore constrained not to
entertain or give due course to the instant Petition.
10
Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo
Baya; Philippine Transport and General Workers Organization (PTGWO);
Trade Union Congress of the Philippines; Sulong Bayan Movement
Foundation, Inc.
11
Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon
III, Benjamin T. Tolosa, Jr., Susan V. Ople and Carlos P. Medina, Jr.;
Alternative Law Groups, Inc.; Atty. Pete Quirino Quadra; Bayan, Bayan
Muna, Kilusang Mayo Uno, Head, Ecumenical Bishops Forum, Migrante,
Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino
Students, Jojo Pineda, Dr. Darby Santiago, Dr. Reginald Pamugas; Loretta
Ann P. Rosales, and Mario Joyo Aguja, Ana Theresa Hontiveros-Baraquel,
Luwalhati Ricasa Antonino; Philippine Constitution Association
(PHILCONSA), Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon,
Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and
Amado Gat Inciong; Senate of the Philippines; Jose Anselmo I. Cadiz,
Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador and Randall
C. Tabayoyong, Integrated Bar of the Philippines, Cebu City and Cebu
Province Chapters; Senate Minority Leader Aquilino Q. Pimentel, Jr., and
Senators Sergio R. Osmea III, Jamby Madrigal, Jinggoy Estrada, Alfredo
S. Lim and Panfilo Lacson; Joseph Ejercito Estrada and Pwersa ng Masang
Pilipino.
12
This provision states: "Amendments to this Constitution may likewise
be directly proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years."
13
I RECORD, 387-388.
14
During the deliberations of the Constitutional Commission,
Commissioner Rene V. Sarmiento made the following report (I RECORD
389):
MR. SARMIENTO: Madam President, I am happy that the
Committee on Amendments and Transitory Provisions decided to
retain the system of initiative as a mode of amending the
Constitution. I made a survey of American constitutions and I
discovered that 13 States provide for a system of initiative as a
mode of amending the Constitution Arizona, Arkansas,
California, Colorado, Massachusetts, Michigan, Missouri,
Nebraska, Nevada, North Dakota, Ohio, Oklahoma and Oregon.
The initiative for ordinary laws only is used in Idaho, Maine,
355
 19
Montana and South Dakota. So, I am happy that this was Stumpf v. Law, 839 P. 2d 120, 124 (1992).
accepted or retained by the Committee.
20
Exhibit "B" of the Lambino Group's Memorandum filed on 11 October
xxxx 2006.

21
The Americans in turn copied the concept of initiatives from the Annex "B" of the Comment/Opposition in Intervention of Atty. Pete
Swiss beginning in 1898 when South Dakota adopted the initiative Quirino-Quadra filed on 7 September 2006.
in its constitution. The Swiss cantons experimented with
22
initiatives in the 1830s. In 1891, the Swiss incorporated the www.ulap.gov.ph.
initiative as a mode of amending their national constitution.
Initiatives promote "direct democracy" by allowing the people to 23
www.ulap.gov.ph/reso2006-02.html.
directly propose amendments to the constitution. In contrast, the
traditional mode of changing the constitution is known as 24
The full text of the proposals of the Consultative Commission on
"indirect democracy" because the amendments are referred to Charter Change can be downloaded at its official website at
the voters by the legislature or the constitutional convention. www.concom.ph.
15
Florida requires only that the title and summary of the proposed 25
The Lambino Group's Memorandum, p. 5.
amendment are "printed in clear and unambiguous language." Advisory
Opinion to the Attorney General RE Right of Citizens to Choose Health 26
Under the proposed Section 1(2), Article VI of the Constitution,
Care Providers, No. 90160, 22 January 1998, Supreme Court of Florida. members of Parliament shall be elected for a term of five years "without
limitation as to the number thereof."
16
State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933);
Whitman v. Moore, 59 Ariz. 211, 125 P.2d 445 (1942); Heidtman v. City of 27
Under the proposed Section 4(1), Article XVIII, Transitory Provisions of
Shaker Heights, 99 Ohio App. 415, 119 N.E. 2d 644 (1954); Christen v. the Constitution, the interim Parliament "shall continue until the
Baker, 138 Colo. 27, 328 P.2d 951 (1958); Stop the Pay Hike Committee v. Members of the regular Parliament shall have been elected and shall have
Town Council of Town of Irvington, 166 N.J. Super. 197, 399 A.2d 336 qualified." Also, under the proposed Section 5(2), Article XVIII, of the
(1979); State ex rel Evans v. Blackwell, Slip copy, 2006 WL 1102804 (Ohio same Transitory Provisions, the interim Parliament "shall provide for the
App. 10 Dist.), 2006-Ohio-2076. election of the members of Parliament."
17
407 Mass. 949, 955 (1990). Affirmed by the District Court of 28
Under the proposed Section 4(3), Article XVIII, Transitory Provisions of
Massachusetts in Henry v. Conolly, 743 F. Supp. 922 (1990) and by the the Constitution, the interim Parliament, within 45 days from ratification
Court of Appeals, First Circuit, in Henry v. Conolly, 9109 F. 2d. 1000 (1990), of the proposed changes, "shall convene to propose amendments to, or
and cited in Marino v. Town Council of Southbridge, 13 Mass.L.Rptr. 14 revisions of, this Constitution."
(2001).
29
448 So.2d 984, 994 (1984), internal citations omitted.
18
89 P.3d 1227, 1235 (2004).
30
698 P.2d 1173, 1184 (1985).

356
31 46
I RECORD 386, 392, 402-403. 882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v. Keisling
found the amendment in question was not a revision.
32
196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App. 1, 882
47
P.2d 91 (1994). Section 1, Article V of the Constitution.

33 48
392 P.2d 636, 638 (1964). Section 11(1), Article XVI of the Constitution.

34 49
930 P.2d 186, 196 (1996), internal citations omitted. Section 2, Article VII of the Constitution.

35 50
Livermore v. Waite, 102 Cal. 113, 118-119 (1894). This section provides: "The Philippines is a democratic and republican
State. Sovereignty resides in the people and all government authority
36 emanates from them."
Amador Valley Joint Union High School District v. State Board of
Equalization, 583 P.2d 1281, 1286 (1978).
51
Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v.
37 COA, 366 Phil. 273 (1999).
Id.

38 52
Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991). G.R. No. 129754, Resolution dated 23 September 1997.

39 53
California Association of Retail Tobacconists v. State, 109 Cal.App.4th Presidential Proclamation No. 58 dated February 11, 1987, entitled
792, 836 (2003). "Proclaiming the Ratification of the Constitution of the Republic of the
Philippines Adopted by the Constitutional Commission of 1986, including
40
See note 44, infra. the Ordinance Appended thereto."

41
Joaquin Bernas, The 1987 Constitution of the Republic of the PANGANIBAN, CJ.:
Philippines: A Commentary, p. 1294 (2003).
1
Chief Justice McLachlin spoke on "Liberty, Prosperity and the Rule of
42
238 So.2d 824 (1970). Law" in her speech before the Global Forum on Liberty and Prosperity
held on October 18-20, 2006 in Manila. She further stated: "Without the
43
Id. at 830-832. rule of law, government officials are not bound by standards of conduct.
Without the rule of law, the dignity and equality of all people is not
44
As stated by Associate Justice Romeo J. Callejo, Sr. during the 26 affirmed and their ability to seek redress for grievances and societal
September 2006 oral arguments. commitments is limited. Without the rule of law, we have no means of
ensuring meaningful participation by people in formulating and enacting
45
Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10 the norms and standards which organize the kinds of societies in which
November 2003, 415 SCRA 44; J.M. Tuason & Co., Inc. v. Land Tenure we want to live."
Administration, 142 Phil. 393 (1970); Gold Creek Mining Corporation v.
Rodriguez, 66 Phil. 259 (1938).
357
2
GR No. 127325, March 19, 1997, 336 Phil. 848. For ease of reference, my
Separate Opinion is reproduced in full:
"Our distinguished colleague, Mr. Justice Hilario G. Davide Jr.,
writing for the majority, holds that:
'(1) The Comelec acted without jurisdiction or with grave abuse of
discretion in entertaining the 'initiatory' Delfin Petition.
'(2) While the Constitution allows amendments to 'be directly
proposed by the people through initiative,' there is no
implementing law for the purpose. RA 6735 is 'incomplete,
inadequate, or wanting in essential terms and conditions insofar
as initiative on amendments to the Constitution is concerned.'
'(3) Comelec Resolution No. 2300, 'insofar as it prescribes rules
and regulations on the conduct of initiative on amendments to
the Constitution, is void.'
"I concur with the first item above. Until and unless an initiatory
petition can show the required number of signatures in this
case, 12% of all the registered voters in the Philippines with at least
3% in every legislative district no public funds may be spent and
no government resources may be used in an initiative to amend
the Constitution. Verily, the Comelec cannot even entertain any
petition absent such signatures. However, I dissent most
respectfully from the majority's two other rulings. Let me explain.
"Under the above restrictive holdings espoused by the Court's
majority, the Constitution cannot be amended at all through a
people's initiative. Not by Delfin, not by PIRMA, not by anyone,
not even by all the voters of the country acting together. This
decision will effectively but unnecessarily curtail, nullify, abrogate
and render inutile the people's right to change the basic law. At
the very least, the majority holds the right hostage to
congressional discretion on whether to pass a new law to
implement it, when there is already one existing at present. This
right to amend through initiative, it bears stressing, is guaranteed
by Section 2, Article XVII of the Constitution, as follows:
their final weapons against political excesses, opportunism,
inaction, oppression and misgovernance; as well as their reserved
instruments to exact transparency, accountability and
faithfulness from their chosen leaders. While on the one hand,
their misuse and abuse must be resolutely struck down, on the
other, their legitimate exercise should be carefully nurtured and
zealously protected.
"WHEREFORE, I vote to GRANT the petition of Sen. Miriam D.
Santiago et al. and to DIRECT Respondent Commission on
Elections to DISMISS the Delfin Petition on the ground of
prematurity, but not on the other grounds relied upon by the
majority. I also vote to LIFT the temporary restraining order
issued on 18 December 1996 insofar as it prohibits Jesus Delfin,
Alberto Pedrosa and Carmen Pedrosa from exercising their right
to free speech in proposing amendments to the Constitution."
3
GR No. 129754, September 23, 1997 (still unpublished in the Philippine
Reports or in the Supreme Court Reports Annotated). Again, for ease of
reference, I reproduce my Separate Opinion in full:
"Petitioners assail the July 8, 1997 Resolution of Respondent
Commission dismissing their petition for a people's initiative to
amend the Constitution. Said petition before the Comelec
(henceforth, PIRMA petition) was backed up by nearly six (6)
million signatures constituting about 16% of the registered voters
of the country with at least 3% in each legislative district. The
petition now before us presents two grounds:
"1. In refusing to act on the PIRMA petition, the Comelec allegedly
acted with grave abuse of discretion amounting to lack or excess
of jurisdiction; and
358
 "2. In declaring R.A. 6735 "inadequate to cover its system of
initiative on amendments to the Constitution" and "declaring void
those parts of Resolution 2300 of the Commission on Elections
prescribing rules and regulations on the conduct of [an] initiative
[on] amendments to the Constitution," the Supreme Court's
Decision in G.R. No. 127325 entitled Miriam Defensor Santiago vs.
Commission on Elections (hereafter referred to as Santiago) should
be reexamined because said Decision is allegedly
"unconstitutional," and because, in any event, the Supreme Court
itself, in reconsidering the said issue per its June 10, 1997
Resolution, was deadlocked at six votes one each side.
"The following in my position on each of these two issues:
First Issue:
No Grave Abuse of Discretion in Comelec's Refusal to Act
"The Respondent Commission's refusal to act on the "prayers" of
the PIRMA petition cannot in any wise be branded as "grave
abuse of discretion." Be it remembered that the Court's Decision
in Santiago permanently enjoined the Comelec "from entertaining
or taking cognizance of any petition for initiative on amendments
to the
4
Republic v. COCOFED, 423 Phil. 735, December 14, 2001.
5
Well-entrenched is this definition of grave abuse of discretion. Id.;
Benito v. Comelec, 349 SCRA 705, January 19, 2001; Defensor-Santiago v.
Guingona Jr., 359 Phil. 276, November 18, 1998; and Philippine Airlines,
Inc. v. Confesor, 231 SCRA 41, March 10, 1994.
6
In PIRMA, I submitted as follows: "I believed, and still do, that the
majority gravely erred in rendering such a sweeping injunction [that
covered ANY petition, not just the Delfin petition], but I cannot fault the
Comelec for complying with the ruling even if it, too, disagreed with said
decision's ratio decidendi. Respondent Comelec was directly enjoined by
the highest Court of the land. It had no choice but to obey. Its obedience
cannot constitute grave abuse of discretion. Regusal to act on the PIRMA
petition was the only recourse open to the Comelec. Any other mode of
action would have constituted defiance of the Court and would have
been struck down as grave abuse of discretion and contumacious
disregard of this Court's supremacy as the final arbiter of justiciable
controversies."
7
42 Am. Jr. 2d, 26, citing Birmingham Gas Co. v. Bessemer; 250 Ala 137, 33
So 2d 475, 250 Ala 137; Tacker v. Board of Comrs., 127 Fla 248, 170 So 458;
Hoxie V. Scott, 45 Neb 199, 63 NW 387; Gill v. Board of Comrs., 160 NC 176,
76, SE 204.
8
Partido ng Manggagawa v. Comelec, GR No. 164702, March 15, 2006.
9
Article XVII (AMENDMENTS OR REVISIONS)
"SEC. 1. Any amendment to, or revision of, this Constitution may
be proposed by:
(1) The Congress, upon the vote of three-fourths of all its
Members; or
(2) A constitutional convention.
"SEC. 2. Amendments to this Constitution may likewise be directly
proposed by the people though initiative upon a petition of at
least twelve per centum of the total number of registered voters,
of which every legislative district must be represented by at least
three per centum of the registered voters therein. No
amendment under this section shall be authorized within five
years following the ratification of this Constitution nor oftener
than once every five years thereafter.
"SEC. 3. The Congress may, by a vote of two-thirds of all its
Members, call a constitutional convention, or by a majority vote
359
 of all its Members, submit to the electorate the question of calling
such a convention.
"SEC. 4. Any amendment to, or revision of, this Constitution under
Section 1 hereof shall be valid when ratified by a majority of the
votes cast in a plebiscite which shall be held not earlier than sixty
days nor later than ninety days after the approval of such
amendment or revision.
"Any amendment under Section 2 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall
be held not earlier than sixty days nor later than ninety days after
the certification by the Commission on Elections of the sufficiency
of the petition."
10
Republic Act 6735, Sec. 10, provides:
"SEC. 10. Prohibited Measures. The following cannot be the
subject of an initiative or referendum petition:
(a) No petition embracing more than one subject shall be
submitted to the electorate; and
(b) Statutes involving emergency measures, the
enactment of which are specifically vested in Congress by
the Constitution, cannot be subject to referendum until
ninety (90) days after its effectivity."
11
The principle of separation of powers operates at the core of a
presidential form of government. Thus, legislative power is given to the
legislature; executive power, to a separate executive (from whose
prominent position in the system, the presidential nomenclature is
derived); and judicial power, to an independent judiciary. This system
embodies interdependence by separation.
On the other hand, a parliamentary system personifies interdependence
by integration, its essential features being the following: "(1) The
members of the government or cabinet or the executive arm are, as a
rule, simultaneously members of the legislature. (2) The government or
cabinet, consisting of the political leaders of the majority party or of a
coalition who are also members of the legislative, is in effect a committee
of the legislature. (3) The government or cabinet has a pyramidal
structure, at the apex of which is the Prime Minister or his equivalent. (4)
The government or cabinet remains in power only for as long as it enjoys
the support of the majority of the legislature. (5) Both government and
legislature are possessed of control devices with which each can demand
of the other immediate political responsibility." These control devices are
a vote of no-confidence (censure), whereby the government may be
ousted by the legislature; and the power of the government to dissolve
the legislature and call for new elections. (J. BERNAS, THE
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A COMMENTARY,
Vol. II, 17-18 (1988 ed.).
With respect to the transformation from a bicameral to a unicameral
legislature, the change involves the form of representation and the
lawmaking process.
12
Attached to the Opposition-in-Intervention of Intervenors OneVoice
Inc., etc., is a photocopy of the Certification dated August 23, 2006,
issued by Atty. Marlon S. Casquejo, the election officer for the 3rd District
and the officer-in-charge for the 1st and the 2nd Districts of Davao City. The
Certification states that "this office (First, Second and Third District,
Davao City) has not verified the signatures of registered voters x x x."
13
In People v. Veneracion, the Court held: "Obedience to the rule of law
forms the bedrock of our system of justice. If judges, under the guide of
religious or political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to exercise the duties
of their office, then law becomes meaningless. A government of laws, not
of men, excludes the exercise of broad discretionary powers by those
acting under its authority. Under this system, judges are guided by the
Rule of Law, and ought 'to protect and enforce it without fear or favor,'
resist encroachments by governments, political parties, or even the
interference of their own personal beliefs." (249 SCRA 244, October 13,
1995, per Kapunan, J.)
360
14
An American professor on legal philosophy, A. Altman, puts it thus: "By
ratifying the constitution that included an explicit amendment process,
the sovereign people committed themselves to following the rule of law,
even when they wished to make changes in the basic system of
government." A. ALTMAN, ARGUING ABOUT LAW 94 (2001).
15
See my Separate Opinion in Francisco Jr. v. House of Representatives,
415 SCRA 45, November 10, 2003.
16
See, for instance, the front page Malaya report entitled "Lobbyists soil
dignity of Supreme Court" (October 23, 2006).
17
Lk 8:17.
YNARES-SANTIAGO, J.:
1
G.R. No. 127325, March 19, 1997, 270 SCRA 106.
2
SEC. 5. Requirements. x x x
(c) The petition shall state the following:
c.1. contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be;
c.2. the proposition;
c.3. the reason or reasons therefore;
c.4. that it is not one of the exceptions provided herein;
c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary proposition in not more than one
hundred (100) words which shall be legibly written or printed at
the top of every page of the petition.
3
SEC. 3. Definition of Terms. For purposes of this Act, the following
terms shall mean: x x x
(d) "Proposition" is the measure proposed by the voters.
4
I Record, Constitutional Commission 387-389 (July 9, 1986).
5
Community Gas and Service Company, Inc. v. Walbaum, 404 P.2d 1014,
1965 OK 118 (1965).
6
Section 26. (1) Every bill passed by the Congress shall embrace only one
subject which shall be expressed in the title thereof.
7
The late Senator (then Congressman) Raul S. Roco stated this fact in his
sponsorship presentation of H.B. No. 21505, thus:
xxxx
D. Prohibited Subjects.
The bill provides for two kinds of measures which cannot be the
subject of an initiative or referendum petition. A petition that
embraces more than one subject cannot be submitted to the
electorate as it would be violative of the constitutional
proscription on passing bills containing more than one subject,
and statutes involving emergency measures cannot be subject to
referendum until 90 days after its effectivity. [Journal and record
of the house of representatives, Second Regular Session, Vol. 6,
p. 975 (February 14, 1989).]
8
Memorandum of petitioner Aumentado, p. 117.
9
The proposed Section 4(3) of Article XVIII of the Constitution states that
Senators whose term of office ends in 2010 shall be members of
parliament until noon of the thirtieth day of June 2010. No counterpart
provision was provided for members of the House of Representatives
361
 21
who, as members of the interim parliament under the proposed changes, Id.
shall schedule the elections for the regular parliament in its discretion.
22
Supra note 14.
10
The proposed Section 4(3), Article XVIII of the Constitution states that
23
the interim parliament shall convene to propose amendments to, or The Constitution of the Republic of the Philippines, Vol. II, 1st ed., Fr.
revisions of, the Constitution within 45 days from ratification of the Joaquin G. Bernas, S.J., p. 567, citing B. Schwartz, I The Powers of
proposed changes. Government (1963).

11 24
The United Kingdom, for instance, has a two-house parliament, the 16 C.J.S. 3 at 24.
House of Lords and the House of Commons.
25
14 T.M. Cooley, II Constitutional Limitations, 8th ed. (1927), p. 1349.
12
Philippine Political Law [1954 ed.], Vicente G. Sinco, pp. 43-44, quoted in
Separate Opinion of J. Hilario G. Davide, Jr. in PIRMA v. COMELEC, G.R. 26
A bogus revolution, Philippine Daily Inquirer, September 11, 2006, Fr.
No. 129754, September 23, 1997, p. 7. Joaquin Bernas, S.J., p. A15.

13
151-A Phil. 35 (1973). 27
Article II, Section 1 of the 1987 Constitution.

14
196 P. 2d 787 (Cal. 1948), cert. denied, 336 U.S. 918 (1949). SANDOVAL-GUTIERREZ, J.:

15
801 P. 2d 1077 (Cal. 1990). 1
Works, Letter 164.

16
583 P. 2d 1281 (Cal. 1982). 2
G.R. No. 127325, March 19, 1997, 270 SCRA 106.

17
Raven v. Deukmeijan, supra, citing Brosnahan v. Brown, 651 P. 2d 274
(Cal. 1982).
18
Supra note 13. It may well be pointed out that in making the distinction
between amendment and revision, Justice Antonio relied not only in the
analogy presented in Wheeler v. Board of Trustees, 37 S.E. 2d 322, but cited
also the seminal ruling of the California Supreme Court in McFadden v.
Jordan, supra.
19
Philippine Political Law, 1995 ed., Justice Isagani A. Cruz, p. 71, citing
Pangasinan Transportation Co. v. PSC, 40 O.G., 8th Supp. 57.
20
The 1987 Constitution of the Philippines: A Commentary, 1996 ed., Fr.
Joaquin G. Bernas, S.J., p. 1161.
3
Resolution dated June 10, 1997, G.R. No. 127325.
4
G.R. No. 129754, September 23, 1997. Joining PIRMA as petitioners were
its founding members, spouses Alberto Pedrosa and Carmen Pedrosa.
5
Entitled "In the Matter of Proposing Amendments to the 1987
Constitution through a People's Initiative: A Shift from a Bicameral
Presidential to a Unicameral Parliamentary Government by Amending
Articles VI and VII; and Providing Transitory Provisions for the Orderly
Shift from the Presidential to the Parliamentary System."
6
Among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin,
Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P.
Medina, Jr., Alternative Law Groups, Inc., Senate Minority Leader Aquilino

362
Q. Pimentel, Jr., and Senators Sergio Osmea III, Jamby A.S. Madrigal,
Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy
Estrada, Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and
Ana Theresia Hontiveros-Baraquel, Bayan, Kilusang Mayo Uno,
Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party,
Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda,
Drs. Darby Santiago and Reginald Pamugas, and Attys. Pete Quirino-
Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat,
Antonio L. Salvador, and Randall C. Tabayoyong.
7
"Grounds for contempt
3. From the time the so-called People's Initiative (hereafter PI)
now subject of Lambino v. Comelec, was initiated, respondents
did nothing to stop what was clearly lawless, and even arguably
winked at, as it were, if not condoned and allowed, the waste
and misuse of its personnel, time, facilities and resources on an
enterprise that had no legal basis and in fact was permanently
enjoined by this Honorable Court in 1997. Seemingly mesmerized,
it is time to disenthrall them.
3.1. For instance, undersigned counsel happened to be in the
Senate on August 29, 2006 (on other business) when respondent
Chair sought to be stopped by the body from commenting on PI
out of prudential considerations, could not be restrained. On
contentious issues, he volunteered that Sigaw ng Bayan would
not cheat in Makati as it was the opposition territory and that
the fact that out of 43,405 signatures, only 7,186 were found
authentic in one Makati District, to him, showed the "efficiency"
of Comelec personnel. He could not appreciate 1) that Sigaw had
no choice but to get the constitutionality-required 3% in every
district, [Const., Art. VII, Sec. 2] friendly or otherwise, including
administration critics' turfs, and 2) that falsus in 36,319 (93.30%)
falsus in omnibus, in an exercise that could never be free,
orderly, honest and credible, another constitutional
requirement. [Nothing has been heard about probing and
prosecuting the falsifiers.]
xxxxxxxxx
3.2. It was excessively obvious to undersigned and other
observers that respondent Chairman, straining at the leash, was
lawyering for Sigaw ng Bayan in the Senate! It was discomfiting
that he would gloss over the seeming wholesale falsification of
96.30% of the signatures in an exercise with no credibility! Even
had he been asked, he should have pled to be excused from
answering as the matter could come up before the Comelec for
an official collegial position (different from conceding that it is
enjoined).
xxxxxxxxx
4. Respondents Commissioners Borra and Romeo A. Brawner,
for their part, even issued widely-publicized written directives to
the field, [Annex C, as to Commissioner Brawner; that as to
Commissioner Borra will follow.] while the Commission itself was
trying to be careful not to be explicit in what it was abetting
implicitly, in hypocritical defiance of the injunction of 1997.
8
Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, G.R.
No. 72424, February 13, 1989, 170 SCRA 246.
9
Supra.
10
Development Bank of the Philippines v. NLRC, March 1, 1995, 242 SCRA
59; Albert v. Court of First Instance of Manila (Branch VI), L-26364, May 29,
1968, 23 SCRA 948.
11
56 O.G. 3546 cited in Albert v. Court of First Instance of Manila (Branch
VI), id.
12
Supra.
13
Separate Opinion of Justice Ricardo J. Francisco, G.R. No. 129754,
September 23, 1997.
363
14 29
G.R. No. 109645, March 4, 1996, 254 SCRA 234. Rivera-Cruz v. Gray, 104 So.2d 501, p. 505 (Fla. 1958).

15
Philippine National Bank v. Palma, G.R. No. 157279, August 9, 2005, 466
CSRA 307, citing Moreno, Philippine Law Dictionary (1988), 3rd ed. (citing
Santiago v. Valenzuela, 78 Phil. 397, [1947]).
16
Id., citing Dela Cruz v. Court of Appeals, G.R. No. 126183, March 25, 1999,
305 SCRA 303, citing Government v. Jalandoni, No. 837-R, August 30,
1947, 44 O.G. 1840.
17
Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven and
London: Yale University Press, 1921), pp. 33-34.
18
William K. Frankena, Ethics, 2nd ed. (Englewood Cliffs, N.J.: Prentice Hall
Inc.,) 1973, p. 49.
30
Joaquin Bernas, Sounding Board: AMENDMENT OR REVISION,
Philippine Daily Inquirer, September 25, 2006.
31
See Sections 8-12 for national initiative and referendum, and sections 13-
19 for local initiative and referendum.
32
Section 2. Statement of Policy. The power of the people under a
system of initiative and referendum to directly propose, enact, approve
or reject, in whole or in part, the Constitution, laws, ordinances, or
resolutions passed by any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized and guaranteed.
33
Section 3. Definition of terms.-

19
Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296. xxx

20
July 9, 1986. Records of the Constitutional Commission, No. 26. a.1. Initiative on the Constitution which refers to a petition
proposing amendments to the Constitution;
21
Bernas, THE 1987 CONSTITUTION OF THE PHILIPPINES: A
COMMENTARY, 1996 Ed., p. 1161. xxx

22 34
242 N. W. 891 259 Mich 212. See Section 3(e).

23 35
State v. Orange [Tex. x. Civ. App.] 300 SW 2d 705, People v. Perkins 137, Section 5 (b) A petition for an initiative on the 1987 Constitution must
p. 55. have at least twelve per centum (12%) of the total number of registered
voters as signatories, of which every legislative district must be
18 represented by at least three per centum (3%) of the registered voters
City of Midland v. Arbury 38 Mich. App. 771, 197 N.W. 2d 134.
therein. Initiative on the Constitution may be exercised only after five (5)
25
Adams v. Gunter Fla, 238 So. 2d 824. years from the ratification of the 1987 Constitution and only once every
five (5) years thereafter.
26
196 P.2d 787.
xxx
27
Adams v. Gunter Fla. 238 So.2d 824.

28
Mc Fadden v. Jordan, supra.
364
36 6
Section 9 (b) The proposition in an initiative on the Constitution People v. Court of Appeals, G.R. No. 144332, June 10, 2004, 431 SCRA
approved by a majority of the votes cast in the plebiscite shall become 610.
effective as to the day of the plebiscite.
7
Philippine Rabbit Bus Lines, Inc. v. Galauran & Pilares Construction Co.,
37
7 How (48 US) 1 (1849). G.R. No. L-35630, November 25, 1982, 118 SCRA 664.

38 8
328 US 549 (1946). People v. Court of Appeals, supra.

39 9
77 Phil. 192 (1946). G.R. No. 127325, March 19, 1997, 270 SCRA 106.

40 10
103 Phi. 1051 (1957). Article 8, New Civil Code provides that "[j]udicial decisions applying or
interpreting the laws or the Constitution shall form part of the legal
41 system of the Philippines."
G.R. No. 35546, September 17, 1974, 50 SCRA 559.

42 11
369 US 186 (1962). Suson v. Court of Appeals, G.R. No. 126749, August 27, 1997, 278 SCRA
284.
43
G.R. No. 85344, December 21, 1989, 180 SCRA 496.
12
Calderon v. Carale, G.R. No. 91636, April 23, 1992, 208 SCRA 254.
44
G.R. No. 88211, September 15, 1989, 177 SCRA 668.
13
974 S.W.2d 451 (1998).
45
Nos. L-36142, L-36164, L-36165, L-36236, and L-36283, March 31, 1973, 50
14
SCRA 30. Id. at 453.

15
CALLEJO, SR., J.: Entitled In Re: Rules and Regulations Governing the Conduct of
Initiative in the Constitution, and Initiative and Referendum on National
1
Entitled An Act Providing for a System of Initiative and Referendum and and Local Laws.
Appropriating Funds Therefor.
16
Supra note 10, p. 157.
2
Section 2(1), Article IX-C, 1987 Constitution.
17
G.R. No. 129754.
3
Petition, pp. 12-14.
18
Minute Resolution, September 23, 1997, pp. 1-2.
4
Land Bank of the Philippines v. Court of Appeals, G.R. No. 129368,
19
August 25, 2003, 409 SCRA 455, 480. Republic v. De los Angeles, No. L-26112, October 4, 1971, 41 SCRA 422.

5 20
Rodson Philippines, Inc. v. Court of Appears, G.R. No. 141857, June 9, Albert v. Court of First Instance of Manila, No. L-26364, May 29, 1968, 23
2004, 431 SCRA 469, 480. SCRA 948.
365
21 32
Philippine Constitution Association v. Enriquez, G.R. No. 113105, August Id. at 386.
19, 1994, 235 SCRA 506.
33
Id. at 392.
22
Then Chief Justice Andres R. Narvasa, Justices Florenz D. Regalado,
Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan and 34
Id. at 402-403.
Justo P. Torres, Jr. fully concurred in the ponencia of Justice Davide.
35
No. L-36142, March 31, 1973, 50 SCRA 30.
23
Justices Jose A.R. Melo, Vicente V. Mendoza, Reynato S. Puno, Ricardo
J. Francisco, Jr. and Artemio V. Panganiban (now Chief Justice). 36
Id. at 367.

24
The voting on the motion for reconsideration was as follows: Six 37
SINCO, Philippine Political Law 43-44.
Justices, namely, Chief Justice Narvasa, and Justices Regalado, Davide,
Jr., Romero, Bellosillo and Kapunan, voted to deny the motions for lack of 38
37 S.E.2d 322 (1946).
merit; and six Justices, namely, Justices Melo, Puno, Mendoza, Francisco,
Jr., Regino C. Hermosisima and Panganiban voted to grant the same. 39
Id. at 330.
Justice Vitug maintained his opinion that the matter was not ripe for
judicial adjudication. Justices Teodoro R. Padilla and Torres inhibited from 40
Id.
participation in the deliberations.
41
Sounding Board, Philippine Daily Inquirer, April 3, 2006.
25
House Bill No. 457 filed by then Rep. Nachura during the Twelfth
Congress. 42
Introduction to the Journal of the Constitutional Commission.
26
See Pagdayawon v. Secretary of Justice, G.R. No. 154569, September 43
BLACK, Constitutional Law 1-2, citing 1 BOUV. INST. 9.
23, 2002, 389 SCRA 480.
44
SCHWARTZ, CONSTITUTIONAL LAW 1.
27
London Street Tramways Co., Ltd. v. London County Council, [1898]
A.C. 375, cited in COOLEY, A Treatise on the Constitutional Limitations 117- 45
Proclamation No. 58, 83 O.G. No. 23, pp. 2703-2704, June 8, 1987.
118.
46
28
See McBee v. Brady, 15 Idaho 761, 100 P. 97 (1909).
Amended Petition for Initiative, pp. 4-7.
47
Id.
29
Id. at 7.
48
30
196 P.2d 787 (1948).
I Records of the Constitutional Commission 373.
49
31
Id. at 798.
Id. at 371.
50
Ellingham v. Dye, 99 N.E. 1 (1912).
366
51 70
Dissenting Opinion of Justice Puno, p. 36. Annex "1381."

52 71
Id. at 39. Annex "1382."

53 72
Supra note 38. Annex "1383."

54 73
McFadden v. Jordan, supra note 48. Annex "1385."

55 74
Id. at 799. Annex "1387."

56 75
Supra note 41. Annex "1388."

57 76
Annex "1363." Annex "1389."

58 77
Annex "1368." Annex "1391."

59 78
Annex "1369." Annex "1392."

60 79
Annex "1370." Annex "1393."

61 80
Annex "1371." Annex "1395."

62 81
Annex "1372." Annex "1396."

63 82
Annex "1374." Annex "1397."

64 83
Annex "1375." Annex "1398."

65 84
Annex "1376." Annex "1399."

66 85
Annex "1377." Annex "1400."

67 86
Annex "1378." Annex "1401."

68 87
Annex "1379." Annex "1402."

69 88
Annex "1380." Annex "1404."
367
89 106
Annex "1405." 119 N.W. 408 (1909).

90 107
Annex "1406." 22 Minn. 400 (1876).

91 108
Annex "1407." 96 S.W. 396 (1906).

92 109
Annex "1408." 63 N.J. Law 289.

93 110
Annex "1409." 77 Miss. 543 (1900).

94 111
Annex "1410." Section 1, Article II, 1987 Constitution.

95 112
Annex "1411." Dissenting Opinion of Justice Puno, p. 49.

96 113
Annex "1412." COOLEY, A Treatise on the Constitutional Limitations 56, cited in
Ellingham v. Dye, supra.
97
Arroyo, Jr. v. Taduran, G.R. No. 147012, January 29, 2004, 421 SCRA 423.
114
Hunter v. Colfax Consol. Coal. Co., 154 N.W. 1037 (1915).
98
See, for example, Mendoza v. Court of Appeals, No. L-62089, March 9,
115
1988, 158 SCRA 508. ALTMAN, ARGUING ABOUT THE LAW 94 (2001), citing AGRESTO, THE
SUPREME COURT AND CONSTITUTIONAL DEMOCRACY (1984)
99
Licaros v. Sandiganbayan, G.R. No. 145851, November 22, 2001, 370
116
SCRA 394. McBee v. Brady, 100 P. 97 (1909).

100 117
Codilla, Sr. v. De Venecia, G.R. No. 150605, December 10, 2002, 393 McFadden v. Jordan, supra note 48.
SCRA 639.
118
Cooley, Am.Law.Rev. 1889, p. 311, cited in Ellingham v. Dye, supra.
101
Teope v. People, G.R. No. 149687, April 14, 2004, 427 SCRA 540.
119
15 N.W. 609 (1883).
102
Taada v. Cuenco, 103 Phil. 1051 (1957).
120
Id. at 630.
103
Id.
AZCUNA, J.:
104
G.R. No. 127255, August 14, 1997, 277 SCRA 268, 311-312.
1
G.R. No. 127325, March 19, 1997 and June 10, 1997.
105
Dissenting Opinion of Justice Fernando in Javellana v. Executive
2
Secretary, supra note 36. 100 Phil. 501 (1956).
368
 17
PUNO, J.: Id. at 1913.

1 18
M'cCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 407 (1819). Consovoy, The Rehnquist Court and the End of Constitutional Stare
Decisis: Casey, Dickerson and the Consequences of Pragmatic
2 Adjudication, 53 Utah Law Rev. 53, 67 (2002).
Section 1, Article II, 1987 Constitution.

3 19
270 SCRA 106, March 19, 1997. Id. at 68.

4 20
Id. at 153. Id. at 69.

5 21
Id. at 157. Id. at 67.

6 22
Justice Teodoro R. Padilla did not take part in the deliberation as he was Id. at 69.
related to a co-petitioner and co-counsel of petitioners.
23
Consovoy, supra note 18, at 57.
7
Justice Davide (ponente), Chief Justice Narvasa, and Justices Regalado,
24
Romero, Bellosillo, and Kapunan. Id. at 58.

8 25
Resolution dated June 10, 1997, G.R. No. 127325. Id. at 64.

9 26
People's Initiative for Reforms, Modernization and Action (PIRMA) v. Burnet v. Coronado Oil & Gas Co., 285 U.S. 405-06 (1932) (Justice
Commission on Elections, G.R. No. 129754, September 23, 1997. Brandeis, dissenting).

10 27
Amended Petition for Initiative, pp. 4-7. Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491-492 (Justice
Frankfurter, concurring).
11
G.R. No. 127325, March 19, 1997, 270 SCRA 106.
28
Commissioner of Internal Revenue v. Fink, 483 U.S. 89 (1987) (Justice
12 Stevens, dissenting).
Petition, pp. 12-14.

13 29
Advisory issued by Court, dated September 22, 2006. Barnhart, supra note 15, at 1922.

14 30
Exhibit "B," Memorandum of Petitioner Lambino. Id. at 1921.

15 31
Barnhart, Principled Pragmatic Stare Decisis in Constitutional Cases, 80 Filippatos, The Doctrine of Stare Decisis and the Protection of Civil
Notre Dame Law Rev., 1911-1912, (May 2005). Rights and Liberties in the Rehnquist Court, 11 Boston College Third World
Law Journal, 335, 343 (Summer 1991).
16
Ibid.
369
32 51
347 U.S. 483 (1954). Eighth Edition, p. 89 (2004).

33 52
163 U.S. 537 (1896). Ibid.

34 53
G.R. No. 127882, December 1, 2004, 445 SCRA 1. Id. at 1346.

35 54
G.R. No. 139465, October 17, 2000, 343 SCRA 377. Ibid.

36 55
Barnhart, supra note 15, at 1915. Third Edition, p. 67 (1969).

37 56
112 S.Ct. 2791 (1992). Id. at 68.

38 57
Section 5(b). Id. at 1115.

39 58
Ibid. Vicente G. Sinco, Philippine Political Law, 2nd ed., p. 46.

40 59
Santiago v. Commission on Elections, supra note 11, at 145. Concurring Opinion of Mr. Justice Felix Q. Antonio in Javellana v. The
Executive Secretary, No. L-361432, March 31, 1973, 50 SCRA 30, 367-368.
41
85 Record of the House of Representatives 140-142 (February 14, 1989).
60
J. M. Aruego, The New Philippine Constitution Explained, iii-iv (1973).
42
85 Record of the house of representatives 142-143 (February 14, 1989).
61
E. Quisumbing-Fernando, Philippine Constitutional Law, pp. 422-425
43 (1984).
Zeringue v. State Dept. of Public Safety, 467 So. 2d 1358.

44 62
I RECORD, CONSTITUTIONAL COMMISSION 386, 392 (July 9, 1986). N. Gonzales, Philippine Political Law 30 (1969 ed.).

45 63
Id. at 400, 402-403. Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22,
1991, 194 SCRA 317, 337 quoting Commonwealth v. Ralph, 111 Pa. 365, 3 Alt.
46
v record, constitutional commission 806 (October 10, 1986). 220 (1886).

64
47
Opposition-in-Intervention filed by ONEVOICE, p. 39. L-36142, March 31, 1973, 50 SCRA 30, 367.

65
48
Opposition-in-Intervention filed by Alternative Law Groups, Inc., p. 30. i record, constitutional commission 373 (July 8, 1986).

66
49
Introduction to Political Science, pp. 397-398. The opinion was actually made by Justice Felix Antonio.

50
Section 1, Art. II of the 1987 Constitution.
370
67 84
Javellana v. Executive Secretary, supra note 64, citing Wheeler v. Board State v. Moore, 103 Ark 48, 145 SW 199 (1912); Whittemore v. Seydel, 74
of Trustees, 37 S.E.2d 322, 327 (1946). Cal App 2d 109 (1946).

68
T. M. Cooley, I A Treatise on Constitutional Limitations 143-144 (8th ed. 85
Town of Whitehall v. Preece, 1998 MT 53 (1998).
1927).
86
G.R. No. 125416, September 26, 1996, 262 SCRA 492, 516-517, citing 42
69 nd
H.C. Black, Handbook of American Constitutional Law S. 47, p. 67 (2 Am. Jur. 2d, p. 653.
ed. 1897).
87
Memorandum for petitioner Aumentado, pp. 151-152.
70
V. Sinco, supra note 58.
88
Id. at 153-154.
71
Ibid.
89
L-44640, October 12, 1976, 73 SCRA 333, 360-361.
72
No. L-1232, 79 Phil. 819, 826 (1948).
90
Section 2, Article XVII, 1987 Constitution.
73
IV RECORD, CONSTITUTIONAL COMMISSION 735 (September 17, 1986).
91
Annex "3," Opposition-In-Intervention of Oppositors-Intervenors
74
Id. at 752. ONEVOICE, INC., et al.

75 92
Id. at 769. Certification dated April 21, 2006 issued by Reynne Joy B. Bullecer,
Annex "B," Memorandum of Oppositor-Intervenor Pimentel, et al.;
76 Certification dated April 20, 2006 issued by Atty. Marlon S. Casquejo,
Id. at 767-769.
Annex "C," Memorandum of Oppositor-Intervenor Pimentel, et al.;
77
Id. at 377. Certification dated April 26, 2006 issued by Atty. Marlon S. Cascuejo,
Annex "D," Memorandum of Oppositor-Intervenor Pimentel, et al.
78
Id. at 395.
93
Annex "1," Memorandum of Oppositor-Intevenor Antonino.
79
Sinco, supra note 58, at 22.
94
Annex "10-A," Memorandum of Oppositor-Intevenor Joseph Ejercito
80
Id. at 20-21. Estrada, et al.

95
81
Frivaldo v. Commission on Elections, G.R. No. 120295, June 28, 1996, 257 Annexes 1-29, Memorandum of Oppositor-Intevenor Alternative Law
SCRA 727. Groups, Inc.

96
82
G. Wood, The Creation of the American Republic, 530. Annexes 30-31, Id.

97
83
Sinco, supra note 58, at 29. Annexes 44-64, Id.

371
98
Consolidated Reply of Petitioner Aumentado, p. 54. ASSOCIATE JUSTICE CARPIO:

99
Exhibit "E," Memorandum of Petitioner Lambino. But you asked your friends or your associates to re-print, if they
can(?)
100
Annex "A," Consolidated Response of Petitioner Aumentado.
ATTY. LAMBINO:
101
Memorandum of Oppositor-Intevenor Pimentel, et al., pp. 12-13.
Yes, Your Honor.
102
Helvey v. Wiseman, 199 F. Supp. 200, 8 A.F.T.2d 5576 (1961).
ASSOCIATE JUSTICE CARPIO:
103
BNO Leasing Corp. v. Hollins & Hollins, Inc., 448 So.2d 1329 (1984).
Okay, so you got 6.3 Million signatures, but you only printed 100
104
ASSOCIATE JUSTICE CARPIO:
thousand. So you're saying, how many did your friends print of
How many copies of the petition, that you mention(ed), did you the petition?
print?
ATTY. LAMBINO:
ATTY. LAMBINO:
I can no longer give a specific answer to that, Your Honor. I relied
We printed 100 thousand of this petition last February and we
only to the assurances of the people who are volunteering that
distributed to the different organizations that were volunteering they are going to
to support us.
reproduce the signature sheets as well as the draft petition that
ASSOCIATE JUSTICE CARPIO: we have given them, Your Honor.

So, you are sure that you personally can say to us that 100 xxxxxxxxxxxx
thousand of
ASSOCIATE JUSTICE CARPIO:
these were printed?
Did you also show this amended petition to the people?
ATTY. LAMBINO:
ATTY. LAMBINO:
It could be more than that, Your Honor.
Your Honor, the amended petition reflects the copy of the
xxxxxxxxxxxx original

372
petition that we circulated, because in the original petition that ASSOCIATE JUSTICE CARPIO:
we filed before the COMELEC, we omitted a certain paragraph
that is, Section 4 paragraph 3 which were part of the original Okay, let's be clear. What did you circulate when you gathered
petition that we circulated and so we have to correct that the
oversight because that is what we have circulated to the people
and we have to correct that signatures, the August 25 which you said you circulated or the
August 30?
ASSOCIATE JUSTICE CARPIO:
ATTY. LAMBINO:
But you just stated now that what you circulated was the petition
of Both the August 25 petition that included all the provisions, Your

August 25, now you are changing your mind, you're saying what Honor, and as amended on August 30. Because we have to
you circulated was the petition of August 30, is that correct? include the one that

ATTY. LAMBINO: we have inadvertently omitted in the August 25 petition, Your

Honor.
In effect, yes, Your Honor.
xxxxxxxxxxxx
ASSOCIATE JUSTICE CARPIO:
ASSOCIATE JUSTICE CARPIO:
So, you circulated the petition of August 30, but what you filed in
the And (you cannot tell that) you can only say for certain that you
printed
COMELEC on August 25 was a different petition, that's why you
have to amend it? 100 thousand copies?

ATTY. LAMBINO: ATTY. LAMBINO:

We have to amend it, because there was an oversight, Your That was the original printed matter that we have circulated by
Honor, that the

we have omitted one very important paragraph in Section 4 of month of February, Your Honor, until some parts of March, Your
our proposition. Honor.

xxxxxxxxxxxx ASSOCIATE JUSTICE CARPIO:

373
 115
That is all you can assure us? Id. at 982-84 (Compton, J., concurring).

116
ATTY. LAMBINO: Id. at 975-78.

117
That is all I can assure you, Your Honor, except that I have asked Negri v. Slotkin, 244 N.W. 2d 98 (1976).
some
118
112 Fla. 734, 151 So. 284 (1933).
friends, like for example (like) Mr. Liberato Laos to help me print
out some more of this petition (TSN, September 26, 2006, pp. 119
Penned by Justice Whitfield, and concurred in by Chief Justice Davis
7-17) and Justice Terrell; Justices Ellis, Brown and Buford are of the opinion
that chapter 15938, Acts of 1933, is a special or local law not duly
105
Section 2 (1), Article IX C, 1987 Constitution. advertised before its passage, as required by sections 20 and 21 of article
3 of the state Constitution, and therefore invalid. This evenly divided vote
106 resulted in the affirmance of the validity of the statute but did not
Chief Justice Andres R. Narvasa and Justices Hilario G. Davide, Jr.,
Florenz D. Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago constitute a binding precedent on the Court.
M. Kapunan, Regino C. Hermosisima, Jr. and Justo P. Torres.
120
62 S. Ct. 552 (1942).
107
Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo
121
J. Francisco and Artemio V. Panganiban. 329 F. 2d 541 (1964).

108 122
Justice Jose C. Vitug. 239 F. 2d 532 (9th Cir. 1956).

109 123
Only fourteen (14) justices participated in the deliberations as Justice Citing Hertz v. Woodman, 218 U.S. 205, 30 S. Ct. 621 (1910).
Teodoro R. Padilla took no part on account of his relationship with the
lawyer of one of the parties. 124
331 N.E. 2d 65 (1975).

110 125
Citing conscience as ground. Neil v. Biggers, supra note 108.

111 126
409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). Catherwood v. Caslon, 13 Mees. & W. 261; Beamish v. Beamish, 9 H. L.
Cas. 274.
112
Trans World Airlines, Inc. v. Hardison, 97 S. Ct. 2264 (1977); Arkansas
Writers' Project, Inc. v. Ragland, 107 S. Ct. 1722, 1730 n. 7, 95 L. Ed. 2d 127
Maglalang v. Court of Appeals, G.R. No. 85692, July 31, 1989, 175 SCRA
(1987); France v. Nelson, 292 Ark. 219, 729 S.W. 2d 161 (1987). 808, 811, 812; Development Bank of the Philippines v. Pundogar, G.R. No.
96921, January 29, 1993, 218 SCRA 118.
113
40 P. 3d 886 (2006).
128
No. L-35440, August 19, 1982, 115 SCRA 839, citing Anticamara v. Ong,
114
781 P. 2d 973 (Alaska, 1989). No. L-29689, April 14, 1978, 82 SCRA 337.

374
129
Supra note 1. threat to individual rights and liberty. The U.S. Constitution was
"designed to provide a system of government that would prevent either
QUISUMBING, J.: a tyranny of the majority or a tyranny of the few." James Madison
"warned against the power of a majority or a minority of the population
1
Political questions have been defined as "Questions of which the courts 'united and actuated by some common impulse of passion, or of interest,
of justice will refuse to take cognizance, or to decide, on account of their adverse to the rights of other citizens, or to the permanent and
purely political character, or because their determination would involve aggregate interest of the community.'
an encroachment upon the executive or legislative powers; e.g., what
8
sort of government exists in a state." Black's Law Dictionary, p. 1319 Gilbert Hahn & Steven C. Morton, Initiative and Referendum Do They
citing Kenneth v. Chambers, 14 How. 38, 14 L.Ed. 316. Encourage or Impair Better State Government? 5 FLA. ST. U. L. REV. 925,
927 (1977).
2
See 1987 Const., Art. XVII, Sec. 2.
9
Florida Advisory Council on Intergovernmental Relations, Initiatives and
3
G.R. No. 127325, March 19, 1997, 270 SCRA 106. Referenda: Issues in Citizen Lawmaking (1986).

10
4
G.R. No. 129754, September 23, 1997. Sec. 1, Article II, Constitution.

11
CORONA, J.: In re Initiative Petition No. 362 State Question 669, 899 P.2d 1145 (Okla.
1995).
1
Abrams v. United States, 250 U.S. 616.
TINGA, J.:
2
336 Phil. 848 (1997).
1
G.R. No. 127325, 19 March 1997, 270 SCRA 106.
3
Santos v. Court of Appeals, G.R. No. 134787, 15 November 2005, 475 SCRA
2
1. G.R. No. 129754, 23 September 1997.

4
Feria and Noche, Civil Procedure Annotated, vol. I, 2001 edition, p. 419.
5
Sec. 30, Petitions and initiatives by the people, 16 Am Jur 2d 380, citing
State ex rel. Stenberg v. Beermann, 240 Neb. 754, 485 N.W. 2d 151 (1992).
3
Petitioner Aumentado aptly refers to the comment of the late Senator
Raul Roco that the Santiago ruling "created a third specie of invalid laws,
a mongrel type of constitutional but inadequate and, therefore, invalid
law." Memorandum for Aumentado, p. 54.

4
6
Id. citing Coalition for Political Honesty v. State Board of Elections, 83 Ill. See Civil Code, Art. 9.
2d 236, 47 Ill. Dec. 363, 415 N.E. 2d 368 (1980).
5
456 Phil. 1 (2003).
7
Balitzer, Alfred, The Initiative and Referendum: A Study and Evaluation of
Direct Legislation, The California Roundtable 13 (1981). The American
Founding Fathers recognized that direct democracy posed a profound

375
6
Id., at 10; citing I Arturo M. Tolentino, Civil Code of the Philippines 43
(1990) and Justice Benjamin N. Cardozo, The Nature of the Judicial
Process 113 (1921).
7
See Dissenting Opinion, Manila International Airport Authority v. City of
Paraaque, G.R. No. 155650, 20 July 2006. In my ponencia in Globe Telecom
v. NTC, G.R. No. 143964, 26 July 2004, 435 SCRA 110, I further observed
that while an administrative agency was not enslaved to obey its own
precedent, it was "essential, for the sake of clarity and intellectual
honesty, that if an administrative agency decides inconsistently with
previous action, that it explain thoroughly why a different result is
warranted, or if need be, why the previous standards should no longer
apply or should be overturned." Id., at 144. Happily, Justice Puno's
present opinion expressly elucidates why Santiago should be reversed.
8
As Justice Frankfurter once wrote: "We recognize that stare decisis
embodies an important social policy. It represents an element of
continuity in law, and is rooted in the psychologic need to satisfy
reasonable expectations. But stare decisis is a principle of policy and not a
mechanical formula of adherence to the latest decision, however recent
and questionable, when such adherence involves collision with a prior
doctrine more embracing in its scope, intrinsically sounder, and verified
by experience This Court, unlike the House of Lords, has from the
beginning rejected a doctrine of disability at self-correction." Helvering v.
Hallock, 309 U.S. 106, 119-121 (1940).
9
351 Phil. 692 (1998).
10
As Chief Justice Panganiban then cited: "For instance, Ebralinag vs.
Davision Superintendent of Schools of Cebu, 219 SCRA 256, March 1, 1993,
reversed the Court's 34-year-old doctrine laid down in Gerona vs.
Secretary of Education, 106 Phil 2, August 12, 1959, and upheld the right of
Jehovah's Witnesses "to refuse to salute the Philippine flag on account of
their religious beliefs." Similarly, Olaguer vs. Military Commission, 150
SCRA 144, May 22, 1987, abandoned the 12-year-old ruling in Aquino Jr. vs.
Military Commission, 63 SCRA 546, May 9, 1975, which recognized the
jurisdiction of military tribunals to try civilians for offenses allegedly
committed during martial law. The Court likewise reversed itself in EPZA
vs. Dulay, 149 SCRA 305, April 29, 1987, when it vacated its earlier ruling in
National Housing Authority vs. Reyes, 123 SCRA 245, June 29, 1983, on the
validity of certain presidential decrees regarding the determination of just
compensation. In the much earlier case of Philippine Trust Co. vs.
Mitchell, 59 Phil. 30, December 8, 1933, the Court revoked its holding in
Involuntary Insolvency of Mariano Velasco & Co., 55 Phil 353, November
29, 1930, regarding the relation of the insolvency law with the then Code
of Civil Procedure and with the Civil Code. Just recently, the Court, in
Kilosbayan vs. Morato, 246 SCRA 540, July 17, 1995, also abandoned the
earlier grant of standing to petitioner-organization in Kilosbayan vs.
Guingona, 232 SCRA 110, May 5, 1994." Id., at 780.
11
Ibid.
12
129 Phil. 507, 516 (1967).
13
G.R. Nos. L-78461, L-79146, & L-79212, 12 August 1987, 153 SCRA 67, 75.
14
G.R. No. 160427, 15 September 2004, 438 SCRA 319, 326.
15
Ibid.
16
G.R. No. 155855, 26 January 2004, 421 SCRA 92.
17
Id., at 104. Relatedly, the Court held that "[c] ontests which do not
involve the election, returns and qualifications of elected officials are not
subjected to the exercise of the judicial or quasi-judicial powers of courts
or administrative agencies". Ibid.
18
See e.g., Memorandum of Oppositors-Intervenors Senators Pimentel,
Jr., et. al., pp. 19-22; Memorandum for Intervenor Senate of the
Philippines, pp. 34-35.
19
See 1987 Const., Art. VI, Sec. 26(1). See also Section 19[1]. 1987 Const,
Art. VIII.
376
20 28
See e.g., Sumulong v. COMELEC, 73 Phil. 288, 291 (1941); Cordero v. Hon. See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const., Sec. 2,
Jose Cabatuando, et al., 116 Phil. 736, 741 (1962). Art. XVI.

21 29
See Tio v. VRB, G.R. No. L-75697, 18 June 1987, 151 SCRA 208, 214-215; G.R. No. 151944, January 20, 2004, 420 SCRA 365.
citing Public Service Co., Recktenwald, 290 Ill. 314, 8 A.L.R. 466, 470. See
also Farias v. Executive Secretary, G.R. Nos. 147387 & 152161, 10 30
Id., at 377. Emphasis supplied.
December 2003, 417 SCRA 503, 519.
31
See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const., Sec. 2,
22
"As a policy, this Court has adopted a liberal construction of the one Art. XVI.
title - one subject rule." Tatad v. Secretary of Department of Energy, 346
Phil. 321, 359 (1997). 32
From the "Funeral Oration" by Pericles, as recorded by Thucydides in
the History of the Peloponnesian War.
23
Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896 & 83815; 22
February 1991, 194 SCRA 317. 33
H. Zinn, A People's History of the United States (1980 ed.), at 95.

24
Id. at 337. I have previously expressed my own doubts in relying on the CHICO-NAZARIO, J.:
constitutional or legislative deliberations as a definitive source of
construction. "It is easy to selectively cite passages, sometimes out of 1
The full text of the Preamble reads:
their proper context, in order to assert a misleading interpretation. The
effect can be dangerous. Minority or solitary views, anecdotal We, the sovereign Filipino people, imploring the aid of Almighty
ruminations, or even the occasional crude witticisms, may improperly God, in order to build a just and humane society and establish a
acquire the mantle of legislative intent by the sole virtue of their Government that shall embody our ideals and aspirations,
publication in the authoritative congressional record. Hence, resort to promote the common good, conserve and develop our
legislative deliberations is allowable when the statute is crafted in such a patrimony, and secure to ourselves and our posterity the
manner as to leave room for doubt on the real intent of the legislature." blessings of independence and democracy under the rule of law
Southern Cross Cement Corporation v. Phil. Cement Manufacturers, G.R. and a regime of truth, justice, freedom, love, equality, and peace,
No. G.R. No. 158540, 8 July 2004, 434 SCRA 65, 95. do ordain and promulgate this Constitution.
25
77 Phil. 192 (1946). 2
Article XVII, Constitution.
26
Id. at 215. 3
G.R. No. 127325, 19 March 1997, 270 SCRA 106.
27
Civil Liberties Union v. Executive Secretary, supra note 23, at 338; citing 4
Id. at 157.
Household Finance Corporation v. Shaffner, 203 S.W. 2d 734, 356 Mo.
808. 5
Id. at 124.

377
6 6
Olac v. Rivera, G.R. No. 84256, 2 September 1992, 213 SCRA 321, 328-329; Id.
See also the more recent cases of Republic v. Nolasco, G.R. No. 155108, 27
April 2005, 457 SCRA 400; and PH Credit Corporation v. Court of Appeals, 7
Florentino v. Rivera, et al., G. R. No. 167968, January 23, 2006, 479 SCRA
421 Phil. 821 (2001). 522, 529.

7 8
Supra note 2 at 124. G.R. No. 129754, September 23, 1997.

8 9
G.R. No. 129754. V. Sinco, Philippine Political Law, Principles and Concept 46 (1962).

9
Separate Opinion of former Chief Justice Hilario G. Davide, Jr. to the
Resolution, dated 23 September 1997, in G.R. No. 129754, PIRMA v.
COMELEC, pp. 2-3.

10
Mirpuri v. Court of Appeals, 376 Phil. 628, 650 (1999).

11
Pioneer Texturizing Corporation v. NLRC, G.R. No. 118651, 16 October
1997.

12
Santiago v. Comelec, supra note 2 at 170-171.

13
Isagani A. Cruz, Philippine Political Law, 1996 ed., p. 352.

VELASCO, JR., J.:

1
G.R. No. 127535, March 19, 1997, 270 SCRA 106.

2
Id.

3
Commission on Audit of the Province of Cebu v. Province of Cebu, G.R.
No. 141386, November 29, 2001, 371 SCRA 196, 202.

4
United Harbor Pilots' Association of the Philippines, Inc. v. Association
of International Shipping Lines, Inc., G.R. No. 133763, November 13, 2002,
391 SCRA 522, 533.

5
PH Credit Corporation v. Court of Appeals and Carlos M. Farrales, G. R.
No. 109648, November 22, 2001, 370 SCRA 155, 166-167.

378
 partner," is to provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the
Republic of the Philippines profitability and performance of the Manila Hotel.2 In a close bidding held
SUPREME COURT on 18 September 1995 only two (2) bidders participated: petitioner Manila
Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51%
of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad,
EN BANC a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for
the same number of shares at P44.00 per share, or P2.42 more than the
bid of petitioner.

G.R. No. 122156 February 3, 1997 Pertinent provisions of the bidding rules prepared by respondent GSIS
state
MANILA PRINCE HOTEL petitioner,
vs. I. EXECUTION OF THE NECESSARY
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CONTRACTS WITH GSIS/MHC
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL, respondents. 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
BELLOSILLO, J.: of Shares to the other Qualified Bidders:

The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant a. The Highest Bidder must negotiate and
of rights, privileges, and concessions covering the national economy and execute with the GSIS/MHC the
patrimony, the State shall give preference to qualified Filipinos,1 is in oked Management Contract, International
by petitioner in its bid to acquire 51% of the shares of the Manila Hotel Marketing/Reservation System Contract or
Corporation (MHC) which owns the historic Manila Hotel. Opposing, other type of contract specified by the
respondents maintain that the provision is not self-executing but requires Highest Bidder in its strategic plan for the
an implementing legislation for its enforcement. Corollarily, they ask Manila Hotel. . . .
whether the 51% shares form part of the national economy and patrimony
covered by the protective mantle of the Constitution. b. The Highest Bidder must execute the
Stock Purchase and Sale Agreement with
The controversy arose when respondent Government Service Insurance GSIS . . . .
System (GSIS), pursuant to the privatization program of the Philippine
Government under Proclamation No. 50 dated 8 December 1986, decided K. DECLARATION OF THE WINNING
to sell through public bidding 30% to 51% of the issued and outstanding BIDDER/STRATEGIC PARTNER
shares of respondent MHC. The winning bidder, or the eventual "strategic

379
 The Highest Bidder will be declared the Winning
Bidder/Strategic Partner after the following conditions are
met:
a. Execution of the necessary contracts
with GSIS/MHC not later than October 23,
1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC
and COP (Committee on
Privatization)/OGCC (Office of the
Government Corporate Counsel) are
obtained.3
Pending the declaration of Renong Berhad as the winning
bidder/strategic partner and the execution of the necessary contracts,
petitioner in a letter to respondent GSIS dated 28 September 1995
matched the bid price of P44.00 per share tendered by Renong Berhad.4
In a subsequent letter dated 10 October 1995 petitioner sent a manager's
check issued by Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the Malaysian Group,
Messrs. Renong Berhad . . .5 which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of the
MHC may be hastened by respondent GSIS and consummated with
Renong Berhad, petitioner came to this Court on prohibition and
mandamus. On 18 October 1995 the Court issued a temporary restraining
order enjoining respondents from perfecting and consummating the sale
to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En
Banc after it was referred to it by the First Division. The case was then set
for oral arguments with former Chief Justice Enrique M. Fernando and Fr.
Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with
the Filipino nation and has practically become a historical monument which
reflects the vibrancy of Philippine heritage and culture. It is a proud legacy
of an earlier generation of Filipinos who believed in the nobility and
sacredness of independence and its power and capacity to release the full
potential of the Filipino people. To all intents and purposes, it has become a
part of the national patrimony.6 Petitioner also argues that since 51% of
the shares of the MHC carries with it the ownership of the business of the
hotel which is owned by respondent GSIS, a government-owned and
controlled corporation, the hotel business of respondent GSIS being a
part of the tourism industry is unquestionably a part of the national
economy. Thus, any transaction involving 51% of the shares of stock of the
MHC is clearly covered by the term national economy, to which Sec. 10,
second par., Art. XII, 1987 Constitution, applies.7
It is also the thesis of petitioner that since Manila Hotel is part of the
national patrimony and its business also unquestionably part of the
national economy petitioner should be preferred after it has matched the
bid offer of the Malaysian firm. For the bidding rules mandate that if for
any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS
may offer this to the other Qualified Bidders that have validly submitted
bids provided that these Qualified Bidders are willing to match the highest
bid in terms of price per share.8
Respondents except. They maintain that: First, Sec. 10, second par., Art.
XII, of the 1987 Constitution is merely a statement of principle and policy
since it is not a self-executing provision and requires implementing
legislation(s) . . . Thus, for the said provision to Operate, there must be
existing laws "to lay down conditions under which business may be done."9
Second, granting that this provision is self-executing, Manila Hotel does
not fall under the term national patrimony which only refers to lands of
the public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife,
flora and fauna and all marine wealth in its territorial sea, and exclusive
marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII,
1987 Constitution. According to respondents, while petitioner speaks of
380
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.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding
rules which provides that if for any reason, the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share, is
misplaced. Respondents postulate that the privilege of submitting a
matching bid has not yet arisen since it only takes place if for any reason,
the Highest Bidder cannot be awarded the Block of Shares. Thus the
submission by petitioner of a matching bid is premature since Renong
Berhad could still very well be awarded the block of shares and the
condition giving rise to the exercise of the privilege to submit a matching
bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion
should fail since respondent GSIS did not exercise its discretion in a
capricious, whimsical manner, and if ever it did abuse its discretion it was
not so patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law. Similarly, the petition
for mandamus should fail as petitioner has no clear legal right to what it
demands and respondents do not have an imperative duty to perform the
act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious,
absolute and unalterable except by the authority from which it emanates.
It has been defined as the fundamental and paramount law of the nation.
10 It prescribes the permanent framework of a system of government,
assigns to the different departments their respective powers and duties,
and establishes certain fixed principles on which government is founded.
The fundamental conception in other words is that it is a supreme law to
which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered.
11 Under the doctrine of constitutional supremacy, if a law or contract
violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into
by private persons for private purposes is null and void and without any
force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in every
statute and contract.
Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and
carry out the purposes of the framers who merely establish an outline of
government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of
citizens. 12 A provision which lays down a general principle, such as those
found in Art. II of the 1987 Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes operative without the
aid of supplementary or enabling legislation, or that which supplies
sufficient rule by means of which the right it grants may be enjoyed or
protected, is self-executing. Thus a constitutional provision is self-
executing if the nature and extent of the right conferred and the liability
imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is
no language indicating that the subject is referred to the legislature for
action. 13
As against constitutions of the past, modern constitutions have been
generally drafted upon a different principle and have often become in
effect extensive codes of laws intended to operate directly upon the
381
people in a manner similar to that of statutory enactments, and the
function of constitutional conventions has evolved into one more like
that of a legislative body. Hence, unless it is expressly provided that a
legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-
executing If the constitutional provisions are treated as requiring
legislation instead of self-executing, the legislature would have the power
to ignore and practically nullify the mandate of the fundamental law.14
This can be cataclysmic. That is why the prevailing view is, as it has always
been, that
. . . in case of doubt, the Constitution should be
considered self-executing rather than non-self-executing .
. . . Unless the contrary is clearly intended, the provisions
of the Constitution should be considered self-executing,
as a contrary rule would give the legislature discretion to
determine when, or whether, they shall be effective.
These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely
meaningless by simply refusing to pass the needed
implementing statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987
Constitution is clearly not self-executing, as they quote from discussions
on the floor of the 1986 Constitutional Commission
MR. RODRIGO. Madam President, I am
asking this question as the Chairman of
the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED
FILIPINOS," can it be understood as a
preference to qualified Filipinos vis-a-vis
Filipinos who are not qualified. So, why do
we not make it clear? To qualified Filipinos
as against aliens?
THE PRESIDENT. What is the question of
Commissioner Rodrigo? Is it to remove the
word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely
"TO QUALIFIED FILIPINOS" as against
whom? As against aliens or over aliens?
MR. NOLLEDO. Madam President, I think
that is understood. We use the word
"QUALIFIED" because the existing laws or
prospective laws will always lay down
conditions under which business may be
done. For example, qualifications on the
setting up of other financial structures, et
cetera (emphasis supplied by
respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way
as not to make it appear that it is non-self-executing but simply for
purposes of style. But, certainly, the legislature is not precluded from
enacting other further laws to enforce the constitutional provision so
long as the contemplated statute squares with the Constitution. Minor
details may be left to the legislature without impairing the self-executing
nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the
constitution, further the operation of such a provision, prescribe a
practice to be used for its enforcement, provide a convenient remedy for
the protection of the rights secured or the determination thereof, or
place reasonable safeguards around the exercise of the right. The mere
fact that legislation may supplement and add to or prescribe a penalty for
382
the violation of a self-executing constitutional provision does not render
such a provision ineffective in the absence of such legislation. The
omission from a constitution of any express provision for a remedy for
enforcing a right or liability is not necessarily an indication that it was not
intended to be self-executing. The rule is that a self-executing provision
of the constitution does not necessarily exhaust legislative power on the
subject, but any legislation must be in harmony with the constitution,
further the exercise of constitutional right and make it more available. 17
Subsequent legislation however does not necessarily mean that the
subject constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10,
second par., of Art. XII is implied from the tenor of the first and third
paragraphs of the same section which undoubtedly are not self-
executing. 18 The argument is flawed. If the first and third paragraphs are
not self-executing because Congress is still to enact measures to
encourage the formation and operation of enterprises fully owned by
Filipinos, as in the first paragraph, and the State still needs legislation to
regulate and exercise authority over foreign investments within its
national jurisdiction, as in the third paragraph, then a fortiori, by the same
logic, the second paragraph can only be self-executing as it does not by
its language require any legislation in order to give preference to
qualified Filipinos in the grant of rights, privileges and concessions
covering the national economy and patrimony. A constitutional provision
may be self-executing in one part and non-self-executing in another. 19
Even the cases cited by respondents holding that certain constitutional
provisions are merely statements of principles and policies, which are
basically not self-executing and only placed in the Constitution as moral
incentives to legislation, not as judicially enforceable rights are simply
not in point. Basco v. Philippine Amusements and Gaming Corporation 20
speaks of constitutional provisions on personal dignity, 21 the sanctity of
family life, 22 the vital role of the youth in nation-building 23 the
promotion of social justice, 24 and the values of education. 25 Tolentino v.
Secretary of Finance 26 refers to the constitutional provisions on social
justice and human rights 27 and on education. 28 Lastly, Kilosbayan, Inc. v.
Morato 29 cites provisions on the promotion of general welfare, 30 the
sanctity of family life, 31 the vital role of the youth in nation-building 32
and the promotion of total human liberation and development. 33 A
reading of these provisions indeed clearly shows that they are not
judicially enforceable constitutional rights but merely guidelines for
legislation. The very terms of the provisions manifest that they are only
principles upon which the legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987
Constitution is a mandatory, positive command which is complete in itself
and which needs no further guidelines or implementing laws or rules for
its enforcement. From its very words the provision does not require any
legislation to put it in operation. It is per se judicially enforceable When
our Constitution mandates that [i]n the grant of rights, privileges, and
concessions covering national economy and patrimony, the State shall give
preference to qualified Filipinos, it means just that qualified Filipinos
shall be preferred. And when our Constitution declares that a right exists
in certain specified circumstances an action may be maintained to enforce
such right notwithstanding the absence of any legislation on the subject;
consequently, if there is no statute especially enacted to enforce such
constitutional right, such right enforces itself by its own inherent potency
and puissance, and from which all legislations must take their bearings.
Where there is a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission 34 explains
The patrimony of the Nation that should be conserved
and developed refers not only to out rich natural
resources but also to the cultural heritage of out race. It
also refers to our intelligence in arts, sciences and letters.
Therefore, we should develop not only our lands, forests,
mines and other natural resources but also the mental
ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains
to heritage. 35 When the Constitution speaks of national patrimony, it
refers not only to the natural resources of the Philippines, as the
Constitution could have very well used the term natural resources, but
also to the cultural heritage of the Filipinos.
383
Manila Hotel has become a landmark a living testimonial of Philippine The argument is pure sophistry. The term qualified Filipinos as used in Our
heritage. While it was restrictively an American hotel when it first opened Constitution also includes corporations at least 60% of which is owned by
in 1912, it immediately evolved to be truly Filipino, Formerly a concourse Filipinos. This is very clear from the proceedings of the 1986
for the elite, it has since then become the venue of various significant Constitutional Commission
events which have shaped Philippine history. It was called the Cultural
Center of the 1930's. It was the site of the festivities during the THE PRESIDENT. Commissioner Davide is
inauguration of the Philippine Commonwealth. Dubbed as the Official recognized.
Guest House of the Philippine Government. it plays host to dignitaries and
official visitors who are accorded the traditional Philippine hospitality. 36 MR. DAVIDE. I would like to introduce an
amendment to the Nolledo amendment.
The history of the hotel has been chronicled in the book The Manila Hotel: And the amendment would consist in
The Heart and Memory of a City. 37 During World War II the hotel was substituting the words "QUALIFIED
converted by the Japanese Military Administration into a military FILIPINOS" with the following: "CITIZENS
headquarters. When the American forces returned to recapture Manila OF THE PHILIPPINES OR CORPORATIONS
the hotel was selected by the Japanese together with Intramuros as the OR ASSOCIATIONS WHOSE CAPITAL OR
two (2) places fro their final stand. Thereafter, in the 1950's and 1960's, CONTROLLING STOCK IS WHOLLY OWNED
the hotel became the center of political activities, playing host to almost BY SUCH CITIZENS.
every political convention. In 1970 the hotel reopened after a renovation
and reaped numerous international recognitions, an acknowledgment of xxx xxx xxx
the Filipino talent and ingenuity. In 1986 the hotel was the site of a failed
coup d' etat where an aspirant for vice-president was "proclaimed" MR. MONSOD. Madam President,
President of the Philippine Republic. apparently the proponent is agreeable,
but we have to raise a question. Suppose
For more than eight (8) decades Manila Hotel has bore mute witness to it is a corporation that is 80-percent
the triumphs and failures, loves and frustrations of the Filipinos; its Filipino, do we not give it preference?
existence is impressed with public interest; its own historicity associated
with our struggle for sovereignty, independence and nationhood. Verily, MR. DAVIDE. The Nolledo amendment
Manila Hotel has become part of our national economy and patrimony. would refer to an individual Filipino. What
For sure, 51% of the equity of the MHC comes within the purview of the about a corporation wholly owned by
constitutional shelter for it comprises the majority and controlling stock, Filipino citizens?
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 MR. MONSOD. At least 60 percent,
disassociated from the hotel and the land on which the hotel edifice Madam President.
stands. Consequently, we cannot sustain respondents' claim that the
Filipino First Policy provision is not applicable since what is being sold is MR. DAVIDE. Is that the intention?
only 51% of the outstanding shares of the corporation, not the Hotel
building nor the land upon which the building stands. 38

384
 MR. MONSOD. Yes, because, in fact, we
would be limiting it if we say that the
preference should only be 100-percent
Filipino.
MR: DAVIDE. I want to get that meaning
clear because "QUALIFIED FILIPINOS" may
refer only to individuals and not to juridical
personalities or entities.
MR. MONSOD. We agree, Madam
President. 39
xxx xxx xxx
MR. RODRIGO. Before we vote, may I
request that the amendment be read
again.
MR. NOLLEDO. The amendment will read:
"IN THE GRANT OF RIGHTS, PRIVILEGES
AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY,
THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS." And the word
"Filipinos" here, as intended by the
proponents, will include not only
individual Filipinos but also Filipino-
controlled entities or entities fully-
controlled by Filipinos. 40
The phrase preference to qualified Filipinos was explained thus
MR. FOZ. Madam President, I would like to
request Commissioner Nolledo to please
restate his amendment so that I can ask a
question.
MR. NOLLEDO. "IN THE GRANT OF
RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY
AND PATRIMONY, THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS."
MR FOZ. In connection with that
amendment, if a foreign enterprise is
qualified and a Filipino enterprise is also
qualified, will the Filipino enterprise still be
given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified
in some aspects than the Filipino
enterprise, will the Filipino still be
preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision Commissioner
Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of
"MUST," it will be "SHALL THE STATE SHALL GlVE
PREFERENCE TO QUALIFIED FILIPINOS. This embodies the
so-called "Filipino First" policy. That means that Filipinos
should be given preference in the grant of concessions,
privileges and rights covering the national patrimony. 42
The exchange of views in the sessions of the Constitutional Commission
regarding the subject provision was still further clarified by Commissioner
Nolledo 43
385
 Paragraph 2 of Section 10 explicitly mandates the "Pro-
Filipino" bias in all economic concerns. It is better known
as the FILIPINO FIRST Policy . . . This provision was never
found in previous Constitutions . . . .
The term "qualified Filipinos" simply means that
preference shall be given to those citizens who can make
a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT
mandate the pampering and preferential treatment to
Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would
be counter productive and inimical to the common good.
In the granting of economic rights, privileges, and
concessions, when a choice has to be made between a
"qualified foreigner" end a "qualified Filipino," the latter
shall be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so
considered by respondent GSIS and selected as one of the qualified
bidders. It was pre-qualified by respondent GSIS in accordance with its
own guidelines so that the sole inference here is that petitioner has been
found to be possessed of proven management expertise in the hotel
industry, or it has significant equity ownership in another hotel company,
or it has an overall management and marketing proficiency to
successfully operate the Manila Hotel. 44
The penchant to try to whittle away the mandate of the Constitution by
arguing that the subject provision is not self-executory and requires
implementing legislation is quite disturbing. The attempt to violate a clear
constitutional provision by the government itself is only too
distressing. To adopt such a line of reasoning is to renounce the duty to
ensure faithfulness to the Constitution. For, even some of the provisions
of the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We
cannot simply afford the government a defense that arises out of the
failure to enact further enabling, implementing or guiding legislation. In
fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional
government is apt
The executive department has a constitutional duty to
implement laws, including the Constitution, even before
Congress acts provided that there are discoverable
legal standards for executive action. When the executive
acts, it must be guided by its own understanding of the
constitutional command and of applicable laws. The
responsibility for reading and understanding the
Constitution and the laws is not the sole prerogative of
Congress. If it were, the executive would have to ask
Congress, or perhaps the Court, for an interpretation
every time the executive is confronted by a constitutional
command. That is not how constitutional government
operates. 45
Respondents further argue that the constitutional provision is addressed
to the State, not to respondent GSIS which by itself possesses a separate
and distinct personality. This argument again is at best specious. It is
undisputed that the sale of 51% of the MHC could only be carried out with
the prior approval of the State acting through respondent Committee on
Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this
fact alone makes the sale of the assets of respondents GSIS and MHC a
"state action." In constitutional jurisprudence, the acts of persons distinct
from the government are considered "state action" covered by the
Constitution (1) when the activity it engages in is a "public function;" (2)
when the government is so significantly involved with the private actor as
to make the government responsible for his action; and, (3) when the
government has approved or authorized the action. It is evident that the
act of respondent GSIS in selling 51% of its share in respondent MHC
comes under the second and third categories of "state action." Without
doubt therefore the transaction. although entered into by respondent
GSIS, is in fact a transaction of the State and therefore subject to the
constitutional command. 46
When the Constitution addresses the State it refers not only to the
people but also to the government as elements of the State. After all,
386
government is composed of three (3) divisions of power legislative,
executive and judicial. Accordingly, a constitutional mandate directed to
the State is correspondingly directed to the three(3) branches of
government. It is undeniable that in this case the subject constitutional
injunction is addressed among others to the Executive Department and
respondent GSIS, a government instrumentality deriving its authority
from the State.
It should be stressed that while the Malaysian firm offered the higher bid
it is not yet the winning bidder. The bidding rules expressly provide that
the highest bidder shall only be declared the winning bidder after it has
negotiated and executed the necessary contracts, and secured the
requisite approvals. Since the "Filipino First Policy provision of the
Constitution bestows preference on qualified Filipinos the mere tending
of the highest bid is not an assurance that the highest bidder will be
declared the winning bidder. Resultantly, respondents are not bound to
make the award yet, nor are they under obligation to enter into one with
the highest bidder. For in choosing the awardee respondents are
mandated to abide by the dictates of the 1987 Constitution the provisions
of which are presumed to be known to all the bidders and other
interested parties.
Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the bidding
rules issued by respondent GSIS, lest the bidding rules be nullified for
being violative of the Constitution. It is a basic principle in constitutional
law that all laws and contracts must conform with the fundamental law
of the land. Those which violate the Constitution lose their reason for
being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this
to other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of price
per
share. 47 Certainly, the constitutional mandate itself is reason enough not
to award the block of shares immediately to the foreign bidder
notwithstanding its submission of a higher, or even the highest, bid. In
fact, we cannot conceive of a stronger reason than the constitutional
injunction itself.
In the instant case, where a foreign firm submits the highest bid in a
public bidding concerning the grant of rights, privileges and concessions
covering the national economy and patrimony, thereby exceeding the bid
of a Filipino, there is no question that the Filipino will have to be allowed
to match the bid of the foreign entity. And if the Filipino matches the bid
of a foreign firm the award should go to the Filipino. It must be so if we
are to give life and meaning to the Filipino First Policy provision of the
1987 Constitution. For, while this may neither be expressly stated nor
contemplated in the bidding rules, the constitutional fiat is, omnipresent
to be simply disregarded. To ignore it would be to sanction a perilous
skirting of the basic law.
This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the
Philippines are understood to be always open to public scrutiny. These
are given factors which investors must consider when venturing into
business in a foreign jurisdiction. Any person therefore desiring to do
business in the Philippines or with any of its agencies or instrumentalities
is presumed to know his rights and obligations under the Constitution
and the laws of the forum.
The argument of respondents that petitioner is now estopped from
questioning the sale to Renong Berhad since petitioner was well aware
from the beginning that a foreigner could participate in the bidding is
meritless. Undoubtedly, Filipinos and foreigners alike were invited to the
bidding. But foreigners may be awarded the sale only if no Filipino
qualifies, or if the qualified Filipino fails to match the highest bid tendered
by the foreign entity. In the case before us, while petitioner was already
preferred at the inception of the bidding because of the constitutional
mandate, petitioner had not yet matched the bid offered by Renong
Berhad. Thus it did not have the right or personality then to compel
respondent GSIS to accept its earlier bid. Rightly, only after it had
matched the bid of the foreign firm and the apparent disregard by
respondent GSIS of petitioner's matching bid did the latter have a cause
of action.
387
Besides, there is no time frame for invoking the constitutional safeguard
unless perhaps the award has been finally made. To insist on selling the
Manila Hotel to foreigners when there is a Filipino group willing to match
the bid of the foreign group is to insist that government be treated as any
other ordinary market player, and bound by its mistakes or gross errors of
judgment, regardless of the consequences to the Filipino people. The
miscomprehension of the Constitution is regrettable. Thus we would
rather remedy the indiscretion while there is still an opportunity to do so
than let the government develop the habit of forgetting that the
Constitution lays down the basic conditions and parameters for its
actions.
Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of shares of MHC and to
execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with
the Constitution as well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the bidding rules
after the latter has matched the bid of the Malaysian firm clearly
constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is
embodied in the 1987 Constitution not merely to be used as a guideline
for future legislation but primarily to be enforced; so must it be enforced.
This Court as the ultimate guardian of the Constitution will never shun,
under any reasonable circumstance, the duty of upholding the majesty of
the Constitution which it is tasked to defend. It is worth emphasizing that
it is not the intention of this Court to impede and diminish, much less
undermine, the influx of foreign investments. Far from it, the Court
encourages and welcomes more business opportunities but avowedly
sanctions the preference for Filipinos whenever such preference is
ordained by the Constitution. The position of the Court on this matter
could have not been more appropriately articulated by Chief Justice
Narvasa
As scrupulously as it has tried to observe that it is not its
function to substitute its judgment for that of the
legislature or the executive about the wisdom and
feasibility of legislation economic in nature, the Supreme
Court has not been spared criticism for decisions
perceived as obstacles to economic progress and
development . . . in connection with a temporary
injunction issued by the Court's First Division against the
sale of the Manila Hotel to a Malaysian Firm and its
partner, certain statements were published in a major
daily to the effect that injunction "again demonstrates
that the Philippine legal system can be a major obstacle to
doing business here.
Let it be stated for the record once again that while it is
no business of the Court to intervene in contracts of the
kind referred to or set itself up as the judge of whether
they are viable or attainable, it is its bounden duty to
make sure that they do not violate the Constitution or the
laws, or are not adopted or implemented with grave
abuse of discretion amounting to lack or excess of
jurisdiction. It will never shirk that duty, no matter how
buffeted by winds of unfair and ill-informed criticism. 48
Privatization of a business asset for purposes of enhancing its business
viability and preventing further losses, regardless of the character of the
asset, should not take precedence over non-material values. A
commercial, nay even a budgetary, objective should not be pursued at
the expense of national pride and dignity. For the Constitution enshrines
higher and nobler non-material values. Indeed, the Court will always defer
to the Constitution in the proper governance of a free society; after all,
there is nothing so sacrosanct in any economic policy as to draw itself
beyond judicial review when the Constitution is involved. 49
Nationalism is inherent, in the very concept of the Philippines being a
democratic and republican state, with sovereignty residing in the Filipino
people and from whom all government authority emanates. In
nationalism, the happiness and welfare of the people must be the goal.
The nation-state can have no higher purpose. Any interpretation of any
constitutional provision must adhere to such basic concept. Protection of
388
foreign investments, while laudible, is merely a policy. It cannot override
the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of
privatization. We are not talking about an ordinary piece of property in a
commercial district. We are talking about a historic relic that has hosted
many of the most important events in the short history of the Philippines
as a nation. We are talking about a hotel where heads of states would
prefer to be housed as a strong manifestation of their desire to cloak the
dignity of the highest state function to their official visits to the
Philippines. Thus the Manila Hotel has played and continues to play a
significant role as an authentic repository of twentieth century Philippine
history and culture. In this sense, it has become truly a reflection of the
Filipino soul a place with a history of grandeur; a most historical setting
that has played a part in the shaping of a country. 51
This Court cannot extract rhyme nor reason from the determined efforts
of respondents to sell the historical landmark this Grand Old Dame of
hotels in Asia to a total stranger. For, indeed, the conveyance of this
epic exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable
alienation of a nation's soul for some pieces of foreign silver. And so we
ask: What advantage, which cannot be equally drawn from a qualified
Filipino, can be gained by the Filipinos Manila Hotel and all that it
stands for is sold to a non-Filipino? How much of national pride will
vanish if the nation's cultural heritage is entrusted to a foreign entity? On
the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and
well-meaning Filipino? This is the plain and simple meaning of the Filipino
First Policy provision of the Philippine Constitution. And this Court,
heeding the clarion call of the Constitution and accepting the duty of
being the elderly watchman of the nation, will continue to respect and
protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM,
MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and
OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to
CEASE and DESIST from selling 51% of the shares of the Manila Hotel
Corporation to RENONG BERHAD, and to ACCEPT the matching bid of
petitioner MANILA PRINCE HOTEL CORPORATION to purchase the
subject 51% of the shares of the Manila Hotel Corporation at P44.00 per
share and thereafter to execute the necessary clearances and to do such
other acts and deeds as may be necessary for purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ.,
concur.
Separate Opinions
PADILLA, J., concurring:
I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I
would like to expound a bit more on the concept of national patrimony as
including within its scope and meaning institutions such as the Manila
Hotel.
It is argued by petitioner that the Manila Hotel comes under "national
patrimony" over which qualified Filipinos have the preference, in
ownership and operation. The Constitutional provision on point states:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall Give
preference to qualified Filipinos.1
389
Petitioner's argument, I believe, is well taken. Under the 1987
Constitution, "national patrimony" consists of the natural resources
provided by Almighty God (Preamble) in our territory (Article I) consisting
of land, sea, and air.2 study of the 1935 Constitution, where the concept
of "national patrimony" originated, would show that its framers decided
to adopt the even more comprehensive expression "Patrimony of the
Nation" in the belief that the phrase encircles a concept embracing not
only their natural resources of the country but practically everything that
belongs to the Filipino people, the tangible and the material as well as the
intangible and the spiritual assets and possessions of the people. It is to
be noted that the framers did not stop with conservation. They knew that
conservation alone does not spell progress; and that this may be achieved
only through development as a correlative factor to assure to the people
not only the exclusive ownership, but also the exclusive benefits of their
national patrimony).3
Moreover, the concept of national patrimony has been viewed as
referring not only to our rich natural resources but also to the cultural
heritage of our
race.4
There is no doubt in my mind that the Manila Hotel is very much a part of
our national patrimony and, as such, deserves constitutional protection
as to who shall own it and benefit from its operation. This institution has
played an important role in our nation's history, having been the venue of
many a historical event, and serving as it did, and as it does, as the
Philippine Guest House for visiting foreign heads of state, dignitaries,
celebrities, and others.5
It is therefore our duty to protect and preserve it for future generations
of Filipinos. As President Manuel L. Quezon once said, we must exploit
the natural resources of our country, but we should do so with. an eye to
the welfare of the future generations. In other words, the leaders of
today are the trustees of the patrimony of our race. To preserve our
national patrimony and reserve it for Filipinos was the intent of the
distinguished gentlemen who first framed our Constitution. Thus, in
debating the need for nationalization of our lands and natural resources,
one expounded that we should "put more teeth into our laws, and; not
make the nationalization of our lands and natural resources a subject of
ordinary legislation but of constitutional enactment"6 To quote further:
"Let not our children be mere tenants and trespassers in their own
country. Let us preserve and bequeath to them what is rightfully theirs,
free from all foreign liens and encumbrances".7
Now, a word on preference. In my view "preference to qualified
Filipinos", to be meaningful, must refer not only to things that are
peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the
acquisition of things that pertain to the national patrimony, preference to
qualified Filipinos must allow a qualified Filipino to match or equal the
higher bid of a non-Filipino; the preference shall not operate only when
the bids of the qualified Filipino and the non-Filipino are equal in which
case, the award should undisputedly be made to the qualified Filipino.
The Constitutional preference should give the qualified Filipino an
opportunity to match or equal the higher bid of the non-Filipino bidder if
the preference of the qualified Filipino bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards
foreign investments in our country, stress is on the elimination of barriers
to foreign trade and investment in the country. While government
agencies, including the courts should re-condition their thinking to such a
trend, and make it easy and even attractive for foreign investors to come
to our shores, yet we should not preclude ourselves from reserving to us
Filipinos certain areas where our national identity, culture and heritage
are involved. In the hotel industry, for instance, foreign investors have
established themselves creditably, such as in the Shangri-La, the Nikko,
the Peninsula, and Mandarin Hotels. This should not stop us from
retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino
people to preserve our national patrimony, including our historical and
cultural heritage in the hands of Filipinos.
VITUG, J., concurring:
390
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements,
shared by Mr. Justice Reynato S. Puno in a well written separate
(dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the
grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified
Filipinos"1 is self-executory. The provision verily does not need, although
it can obviously be amplified or regulated by, an enabling law or a set of
rules.
Second, the term "patrimony" does not merely refer to the country's
natural resources but also to its cultural heritage. A "historical landmark,"
to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now
indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a
government entity which derives its authority from the State, in selling
51% of its share in MHC should be considered an act of the State subject to
the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I
find it somewhat difficult to take the same path traversed by the forceful
reasoning of Justice Puno. In the particular case before us, the only
meaningful preference, it seems, would really be to allow the qualified
Filipino to match the foreign bid for, as a particular matter, I cannot see
any bid that literally calls for millions of dollars to be at par (to the last
cent) with another. The magnitude of the magnitude of the bids is such
that it becomes hardly possible for the competing bids to stand exactly
"equal" which alone, under the dissenting view, could trigger the right of
preference.
It is most unfortunate that Renong Berhad has not been spared this great
disappointment, a letdown that it did not deserve, by a simple and timely
advise of the proper rules of bidding along with the peculiar
constitutional implications of the proposed transaction. It is also
regrettable that the Court at time is seen, to instead, be the refuge for
bureaucratic inadequate which create the perception that it even takes
on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only
way to enforce the constitutional mandate that "[i]n the grant of rights,
privileges and concessions covering the national patrimony the State shall
give preference to qualified Filipinos"1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the
purchase of the controlling shares of stocks in the Manila Hotel
Corporation. Indeed, it is the only way a qualified Filipino of Philippine
corporation can be given preference in the enjoyment of a right, privilege
or concession given by the State, by favoring it over a foreign national
corporation.
Under the rules on public bidding of the Government Service and
Insurance System, if petitioner and the Malaysian firm had offered the
same price per share, "priority [would be given] to the bidder seeking the
larger ownership interest in MHC,"2 so that petitioner bid for more
shares, it would be preferred to the Malaysian corporation for that
reason and not because it is a Philippine corporation. Consequently, it is
only in cases like the present one, where an alien corporation is the
highest bidder, that preferential treatment of the Philippine corporation
is mandated not by declaring it winner but by allowing it "to match the
highest bid in terms of price per share" before it is awarded the shares of
stocks.3 That, to me, is what "preference to qualified Filipinos" means in
the context of this case by favoring Filipinos whenever they are at a
disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute
giving "preference to Filipino citizens in the lease of public market
stalls."5 This Court upheld the cancellation of existing leases covering
market stalls occupied by persons who were not Filipinos and the award
thereafter of the stalls to qualified Filipino vendors as ordered by the
Department of Finance. Similarly, in Vda. de Salgado v. De la Fuente,6 this
391
Court sustained the validity of a municipal ordinance passed pursuant to
the statute (R.A. No. 37), terminating existing leases of public market
stalls and granting preference to Filipino citizens in the issuance of new
licenses for the occupancy of the stalls. In Chua Lao v. Raymundo,7 the
preference granted under the statute was held to apply to cases in which
Filipino vendors sought the same stalls occupied by alien vendors in the
public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a
conflict of interest between Filipino applicants and aliens for lease of
stalls in public markets, in which situation the right to preference
immediately arises."8
Our legislation on the matter thus antedated by a quarter of a century
efforts began only in the 1970s in America to realize the promise of
equality, through affirmative action and reverse discrimination programs
designed to remedy past discrimination against colored people in such
areas as employment, contracting and licensing.9 Indeed, in vital areas of
our national economy, there are situations in which the only way to place
Filipinos in control of the national economy as contemplated in the
Constitution 10 is to give them preferential treatment where they can at
least stand on equal footing with aliens.
There need be no fear that thus preferring Filipinos would either invite
foreign retaliation or deprive the country of the benefit of foreign capital
or know-how. We are dealing here not with common trades of common
means of livelihood which are open to aliens in our midst, 11 but with the
sale of government property, which is like the grant of government
largess of benefits and concessions covering the national economy" and
therefore no one should begrudge us if we give preferential treatment to
our citizens. That at any rate is the command of the Constitution. For the
Manila Hotel is a business owned by the Government. It is being
privatized. Privatization should result in the relinquishment of the
business in favor of private individuals and groups who are Filipino
citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to
petitioner we would be trading competence and capability for
nationalism. Both petitioner and the Malaysian firm are qualified, having
hurdled the prequalification process. 12 It is only the result of the public
bidding that is sought to be modified by enabling petitioner to up its bid
to equal the highest bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino
bidder to match the highest bid of an alien could encourage speculation,
since all that a Filipino entity would then do would be not to make a bid
or make only a token one and, after it is known that a foreign bidder has
submitted the highest bid, make an offer matching that of the foreign
firm. This is not possible under the rules on public bidding of the GSIS.
Under these rules there is a minimum bid required (P36.87 per share for a
range of 9 to 15 million shares). 13 Bids below the minimum will not be
considered. On the other hand, if the Filipino entity, after passing the
prequalification process, does not submit a bid, he will not be allowed to
match the highest bid of the foreign firm because this is a privilege
allowed only to those who have "validly submitted bids." 14 The
suggestion is, to say the least, fanciful and has no basis in fact.
For the foregoing reasons, I vote to grant the petition.
TORRES, JR., J., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we
are not confronted in the case at bar with legal and constitutional issues
and yet I am driven so to speak on the side of history. The reason
perhaps is due to the belief that in the words of Justice Oliver Wendell
Holmes, Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila
Hotel has a historical and cultural aspect within the meaning of the
constitution and thus, forming part of the "patrimony of the nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
392
 In the grant of rights, privileges, and concessions covering Filipinos (Vol. III, Records
the national economy and patrimony, the State shall give of the Constitutional
preference to qualified Filipinos. Commission, p. 608).

The State shall regulate and exercise authority over MR. MONSOD. We also
foreign investments within its national goals and wanted to add, as
priorities. Commissioner Villegas
said, this committee and
The foregoing provisions should be read in conjunction with Article II of this body already
the same Constitution pertaining to "Declaration of Principles and State approved what is known
Policies" which ordain as the Filipino First policy
which was suggested by
The State shall develop a self-reliant and independent Commissioner de Castro.
national economy effectively by Filipinos. (Sec. 19). So that it is now in our
Constitution (Vol. IV,
Interestingly, the matter of giving preference to "qualified Filipinos" was Records of the
one of the highlights in the 1987 Constitution Commission proceedings Constitutional
thus: Commission, p. 225).

xxx xxx xxx Commissioner Jose Nolledo explaining the provision

adverted to above, said:
MR. NOLLEDO. The
Amendment will read: "IN MR. NOLLEDO. In the
THE GRANT OF RIGHTS, grant of rights, privileges
PRIVILEGES AND and concessions covering
CONCESSIONS COVERING the national economy and
THE NATIONAL ECONOMY patrimony, the State shall
AND PATRIMONY, THE give preference to
STATE SHALL GIVE qualified Filipinos.
PREFERENCE TO
QUALIFIED FILIPINOS". MR. FOZ. In connection
And the word "Filipinos" with that amendment, if a
here, as intended by the foreign enterprise is
proponents, will include qualified and the Filipinos
not only individual Filipinos enterprise is also qualified,
but also Filipino-Controlled will the Filipino enterprise
entities fully controlled by still be given a preference?

393
 MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is
more qualified in some
aspects than the Filipino
enterprise, will the Filipino
still be preferred:?
MR. NOLLEDO. The
answer is "yes". (Vol. III, p.
616, Records of the
Constitutional
Commission).
The nationalistic provisions of the 1987 Constitution reflect the history
and spirit of the Malolos Constitution of 1898, the 1935 Constitution and
the 1973 Constitutions. That we have no reneged on this nationalist policy
is articulated in one of the earliest case, this Court said
The nationalistic tendency is manifested in various
provisions of the Constitution. . . . It cannot therefore be
said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is
unreasonable, invalid or unconstitutional (Ichong, et al.
vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are
not legislated and is the product of events, customs, usages and
practices. It is actually a product of growth and acceptance by the
collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of
the Manila Hotel is witness to historic events (too numerous to mention)
which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the
single instances of the legal largese which have given rise to this
controversy. As I believe that has been exhaustively discussed in the
ponencia. Suffice it to say at this point that the history of the Manila Hotel
should not be placed in the auction block of a purely business transaction,
where profits subverts the cherished historical values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its
enviable tradition which, in the words of the philosopher Salvador de
Madarriaga tradition is "more of a river than a stone, it keeps flowing,
and one must view the flowing , and one must view the flow of both
directions. If you look towards the hill from which the river flows, you see
tradition in the form of forceful currents that push the river or people
towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the
kind of tradition. Let us not jettison the tradition of the Manila Hotel and
thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different
lights.
I remember, however, a Spanish proverb which says "He is always
right who suspects that he makes mistakes". On this note, I say that if I
have to make a mistake, I would rather err upholding the belief that the
Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.
PUNO, J., dissenting:
This is a. petition for prohibition and mandamus filed by the Manila Prince
Hotel Corporation, a domestic corporation, to stop the Government
Service Insurance System (GSIS) from selling the controlling shares of the
Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the
Constitution.
394
Respondent GSIS is a government-owned and controlled corporation. It is Third Negotiate and execute the necessary contracts
the sole owner of the Manila Hotel which it operates through its with GSIS/MHC not later than October 23, 1995;
subsidiary, the Manila Hotel Corporation. Manila Hotel was included in
the privatization program of the government. In 1995, GSIS proposed to xxx xxx xxx
sell to interested buyers 30% to 51% of its shares, ranging from 9,000,000
to 15,300,000 shares, in the Manila Hotel Corporation. After the absence IV GUIDELINES FOR PREQUALIFICATION
of bids at the first public bidding, the block of shares offered for sale was
increased from a maximum of 30% to 51%. Also, the winning bidder, or the A. PARTIES WHO MAP APPLY FOR
eventual "strategic partner" of the GSIS was required to "provide PREQUALIFICATION
management expertise and/or an international marketing/reservation
system, and financial support to strengthen the profitability and The Winning Bidder/Strategic Partner will
performance of the Manila Hotel"1 The proposal was approved by be expected to provide management
respondent Committee on Privatization. expertise and/or an international
marketing reservation system, and
In July 1995, a conference was held where prequalification documents financial support to strengthen the
and the bidding rules were furnished interested parties. Petitioner Manila profitability and performance of The
Prince Hotel, a domestic corporation, and Renong Berhad, Malaysian firm Manila Hotel. In this context, the GSIS is
with ITT Sheraton as operator, prequalified.2 inviting to the prequalification process any
local and/or foreign corporation,
The bidding rules and procedures entitled "Guidelines and Procedures: consortium/joint venture or juridical entity
Second Prequalification and Public Bidding of the MHC Privatization" with at least one of the following
provide: qualifications:

I INTRODUCTION AND HIGHLIGHTS a. Proven management

.expertise in the hotel
DETERMINING THE WINNING BIDDER/STRATEGIC industry; or
PARTNER
b. Significant equity
The party that accomplishes the steps set forth below will ownership (i.e. board
be declared the Winning Bidder/Strategic Partner and will representation) in another
be awarded the Block of Shares: hotel company; or

First Pass the prequalification process; c. Overall management

and marketing expertise to
Second Submit the highest bid on a price per share successfully operate the
basis for the Block of Shares; Manila Hotel.

395
 Parties interested in bidding for MHC
should be able to provide access to the
requisite management expertise and/or
international marketing/reservation
system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE
REGISTRATION OFFICE
The prequalification documents can be
secured at the Registration Office
between 9:00 AM to 4:00 PM during
working days within the period specified
in Section III. Each set of documents
consists of the following:
a. Guidelines and
Procedures: Second
Prequalification and Public
Bidding of the MHC
Privatization
b. Confidential Information
Memorandum: The Manila
Hotel Corporation
c. Letter of Invitation. to
the Prequalification and
Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference
will be held at The Manila Hotel on the
date specified in Section III to allow the
Applicant to seek clarifications and further
information regarding the guidelines and
procedures. Only those who purchased
the prequalification documents will be
allowed in this conference. Attendance to
this conference is strongly advised,
although the Applicant will not be
penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the
prequalification documents (1 original set
plus 4 copies) at the Registration Office
between 9:00 AM to 4:00 PM during
working days within the period specified
in Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be
evaluated by the PBAC
with the assistance of the
TEC based on the
Information Package and
other information
available to the PBAC.
2. If the Applicant is a
Consortium/Joint Venture,
396
the evaluation will 5. The PBAC will shortlist such number of
consider the overall Applicants as it may deem appropriate.
qualifications of the group,
taking into account the 6. The parties that prequalified in the first
contribution of each MHC public bidding ITT Sheraton,
member to the venture. Marriot International Inc., Renaissance
Hotels International Inc., consortium of
3. The decision of the RCBC Capital/Ritz Carlton may
PBAC with respect to the participate in the Public Bidding without
results of the PBAC having to undergo the prequalification
evaluation will be final. process again.

4. The Applicant shall be G. SHORTLIST OF QUALIFIED BIDDERS

evaluated according to the
criteria set forth below: 1. A notice of prequalification results
containing the shortlist of Qualified
a. Business Bidders will be posted at the Registration
manageme Office at the date specified in Section III.
nt
expertise, 2. In the case of a Consortium/Joint
track Venture, the withdrawal by member
record, and whose qualification was a material
experience consideration for being included in the
shortlist is ground for disqualification of
b. Financial the Applicant.
capability.
V. GUIDELINES FOR THE PUBLIC BIDDING
c.
Feasibility A. PARTIES WHO MAY PARTICIPATE IN
and THE PUBLIC BIDDING
acceptabilit
y of the All parties in the shortlist of Qualified
proposed Bidders will be eligible to participate in the
strategic Public Bidding.
plan for
the Manila B. BLOCK OF SHARES
Hotel

397
 A range of Nine Million (9,000,000) to
Fifteen Million Three Hundred Thousand
(15,300,000) shares of stock representing
Thirty Percent to Fifty-One Percent (30%-
51%) of the issued and outstanding shares
of MHC, will be offered in the Public
Bidding by the GSIS. The Qualified Bidders
will have the Option of determining the
number of shares within the range to bid
for. The range is intended to attract
bidders with different preferences and
objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE
PER SHARE BASIS
1. Bids will be evaluated on a price per
share basis. The minimum bid required on
a price per share basis for the Block of
Shares is Thirty-Six Pesos and Sixty-Seven
Centavos (P36.67).
2. Bids should be in the Philippine currency
payable to the GSIS.
3. Bids submitted with an equivalent price
per share below the minimum required
will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed
Official Bid Form, a copy of which is
attached as Annex IV. The Official Bid
Form must be properly accomplished in all
details; improper accomplishment may be
a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified
Bidder will submit the Official Bid Form,
which will indicate the offered purchase
price, in a sealed envelope marked
"OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following
documents should be submitted along
with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER
OATH).
If the Qualified Bidder is a corporation, the
representative of the Qualified Bidder
should submit a Board resolution which
adequately authorizes such representative
to bid for and in behalf of the corporation
with full authority to perform such acts
necessary or requisite to bind the
Qualified Bidder.
If the Qualified Bidder is a
Consortium/Joint Venture, each member
of the Consortium/Joint venture should
submit a Board resolution authorizing one
of its members and such member's
398
 representative to make the bid on behalf
of the group with full authority to perform
such acts necessary or requisite to bind
the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit
Thirty-Three Million Pesos (P33,000,00), in
Philippine currency as Bid Security in the
form of:
i. Manager's check or
unconditional demand
draft payable to the
"Government Service
Insurance System" and
issued by a reputable
banking institution duly
licensed to do business in
the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of
credit issued by a System Contract or other types of
reputable banking
institution acceptable to
the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have
Bid Security; or
ii. The Bid Security
accompanying the bid is
for less than the required
amount.
c. If the Bid Security is in the form of a
manager's check or unconditional demand
draft, the interest earned on the Bid
Security will be for the account of GSIS.
d. If the Qualified Bidder becomes the
winning Bidder/Strategic Partner, the Bid
Security will be applied as the
downpayment on the Qualified Bidder's
offered purchase price.
e. The Bid Security of the Qualified Bidder
will be returned immediately after the
Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by
October 23, 1995 if the Highest Bidder is
unable to negotiate and execute with
GSIS/MHC the Management Contract,
International Marketing/Reservation
contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder
will be forfeited in favor of GSIS if the
Highest Bidder, after negotiating and
executing the Management Contract,
International Marketing/Reservation
System Contract specified by the Highest
Bidder or other types of contract in its
strategic plan for The Manila Hotel, fails or
refuses to:
399
 i. Execute the Stock
Purchase and Sale
Agreement with GSIS not
later than October 23,
1995; or
ii. Pay the full amount of
the offered purchase price
not later than October 23,
1995; or
iii. Consummate the sale of
the Block of Shares for any
other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on
September 7, 1995 at the following
location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro
Manila.
2. The Secretariat of the PBAC will be
stationed at the Public Bidding to accept
any and all bids and supporting
requirements. Representatives from the
Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its
bid using the Official Bid Form. The
accomplished Official Bid Form should be
submitted in a sealed envelope marked
"OFFICIAL BID."
4. The Qualified Bidder should submit the
following documents in another sealed
envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked
"OFFICIAL BID" and "SUPPORTING BID
DOCUMENTS" must be submitted
simultaneously to the Secretariat between
9:00 AM and 2:00 PM, Philippine Standard
Time, on the date of the Public Bidding.
No bid shall be accepted after the closing
time. Opened or tampered bids shall not
be accepted.
6. The Secretariat will log and record the
actual time of submission of the two
sealed envelopes. The actual time of
submission will also be indicated by the
Secretariat on the face of the two
envelopes.
7. After Step No. 6, the two sealed
envelopes will be dropped in the
corresponding bid boxes provided for the
purpose. These boxes will be in full view
of the invited public.
H. OPENING AND READING OF BIDS
400
1. After the closing time of 2:00 PM on the b. There is only one (1) bid
date of the Public Bidding, the PBAC will that is submitted and
open all sealed envelopes marked acceptable to the PBAC.
"SUPPORTING BID DOCUMENTS" for
screening, evaluation and acceptance. I. EXECUTION OF THE NECESSARY
Those who submitted CONTRACTS WITH GSIS/MHC
incomplete/insufficient documents or
document/s which is/are not substantially 1. The Highest Bidder must comply with
in the form required by PBAC will be the conditions set forth below by October
disqualified. The envelope containing their 23, 1995 or the Highest Bidder will lose the
Official Bid Form will be immediately right to purchase the Block of Shares and
returned to the disqualified bidders. GSIS will instead offer the Block of Shares
to the other Qualified Bidders:
2. The sealed envelopes marked "OFFICIAL
BID" will be opened at 3:00 PM. The name a. The Highest Bidder must
of the bidder and the amount of its bid negotiate and execute
price will be read publicly as the envelopes with GSIS/MHC the
are opened. Management Contract,
International Marketing
3. Immediately following the reading of Reservation System
the bids, the PBAC will formally announce Contract or other type of
the highest bid and the Highest Bidder. contract specified by the
Highest Bidder in its
4. The highest bid will be, determined on a strategic plan for The
price per share basis. In the event of a tie Manila Hotel. If the
wherein two or more bids have the same Highest Bidder is intending
equivalent price per share, priority will be to provide only financial
given to the bidder seeking the larger support to The Manila
ownership interest in MHC. Hotel, a separate
institution may enter into
5. The Public Bidding will be declared a the aforementioned
failed bidding in case: contract/s with GSIS/MHC.

a. No single bid is b. The Highest Bidder must

submitted within the execute the Stock
prescribed period; or Purchase and Sale
Agreement with GSIS, a
copy of which will be
401
 distributed to each of the
Qualified Bidder after the
prequalification process is
completed.
2. In the event that the Highest Bidder
chooses a Management Contract for The
Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC
are prepared to accept in the
Management Contract are as follows:
a. Basic management fee:
Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum
of 8.0% of gross operating
profit(1) after deducting
undistributed overhead
expenses and the basic
management fee.
c. Fixed component of the
international
marketing/reservation
system fee: Maximum of
2.0% of gross room
revenues.(1) The Applicant
should indicate in its
Information Package if it is
wishes to charge this fee.
Note (1): As defined in the uniform system
of account for hotels.
The GSIS/MHC have indicated above the
acceptable parameters for the hotel
management fees to facilitate the
negotiations with the Highest Bidder for
the Management Contract after the Public
Bidding.
A Qualified Bidder envisioning a
Management Contract for The Manila
Hotel should determine whether or not
the management fee structure above is
acceptable before submitting their
prequalification documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder
cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified
Bidders that have validly submitted bids
provided that these Qualified are willing to
match the highest bid in terms of price per
share.
2. The order of priority among the
interested Qualified Bidders will be in
accordance wit the equivalent price per
share of their respective bids in their
public Bidding, i.e., first and second
priority will be given to the Qualified
Bidders that submitted the second and
third highest bids on the price per share
basis, respectively, and so on.
K. DECLARATION OF THE WINNING
BIDDER/STRATEGIC PARTNER
402
The Highest Bidder will be declared the
Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the
necessary contract with
GSIS/MHC not later than
October 23, 1995; and
b. Requisite approvals
from the GSIS/MHC and
COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF
SHARES
1. Upon execution of the necessary
contracts with GSIS/MHC, the Winning
Bidder/Strategic Partner must fully pay,
not later than October 23, 1995, the
offered purchase price for the Block of
Shares after deducting the Bid Security
applied as downpayment.
2. All payments should be made in the
form of a Manager's Check or
unconditional Demand Draft, payable to
the "Government Service Insurance
System," issued by a reputable banking
institution licensed to do business in the
Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the
right to reject any or all applications,
waive any formality therein, or accept
such application as maybe considered
most advantageous to the GSIS. The GSIS
similarly reserves the right to require the
submission of any additional information
from the Applicant as the PBAC may deem
necessary.
2. The GSIS further reserves the right to
call off the Public Bidding prior to
acceptance of the bids and call for a new
public bidding under amended rules, and
without any liability whatsoever to any or
all the Qualified Bidders, except the
obligation to return the Bid Security.
3. The GSIS reserves the right to reset the
date of the prequalification/bidding
conference, the deadline for the
submission of the prequalification
documents, the date of the Public Bidding
or other pertinent activities at least three
(3) calendar days prior to the respective
deadlines/target dates.
4. The GSIS sells only whatever rights,
interest and participation it has on the
Block of Shares.
5. All documents and materials submitted
by the Qualified Bidders, except the Bid
Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the
results of the Public Bidding is final. The
Qualified Bidders, by participating in the
Public Bidding, are deemed to have
agreed to accept and abide by these
results.
403
 7. The GSIS will be held free and harmless
form any liability, suit or allegation arising
out of the Public Bidding by the Qualified
Bidders who have participated in the
Public Bidding.3
The second public bidding was held on September 18, 1995. Petitioner
bidded P41.00 per share for 15,300,000 shares and Renong Berhad bidded
P44.00 per share also for 15,300,000 shares. The GSIS declared Renong
Berhad the highest bidder and immediately returned petitioner's bid
security.
On September 28, 1995, ten days after the bidding, petitioner wrote to
GSIS offering to match the bid price of Renong Berhad. It requested that
the award be made to itself citing the second paragraph of Section 10,
Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad
the terms and conditions of the contract and technical agreements in the
operation of the hotel, refused to entertain petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary
restraining order on October 18, 1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section
10 of the Constitution4 on the "National Economy and Patrimony" which
provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the
Constitution is a self-executing provision and does not
need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-
executing whether the controlling shares of the Manila
Hotel Corporation form part of our patrimony as a nation;
(3) Whether GSIS is included in the term "State," hence,
mandated to implement section 10, paragraph 2 of Article
XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to
give preference to petitioner, a qualified Filipino
corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the
Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the
sale of the shares to Renong Berhad, a foreign
corporation.
Anent the first issue, it is now familiar learning that a Constitution
provides the guiding policies and principles upon which is built the
substantial foundation and general framework of the law and
government.5 As a rule, its provisions are deemed self-executing and can
be enforced without further legislative action.6 Some of its provisions,
however, can be implemented only through appropriate laws enacted by
the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-
executing is a hard row to hoe. The key lies on the intent of the framers
of the fundamental law oftentimes submerged in its language. A
searching inquiry should be made to find out if the provision is intended
as a present enactment, complete in itself as a definitive law, or if it needs
404
future legislation for completion and enforcement.7 The inquiry demands
a micro-analysis of the text and the context of the provision in question.8
Courts as a rule consider the provisions of the Constitution as self-
executing,9 rather than as requiring future legislation for their
enforcement. 10 The reason is not difficult to discern. For if they are not
treated as self-executing, the mandate of the fundamental law ratified by
the sovereign people can be easily ignored and nullified by Congress. 11
Suffused with wisdom of the ages is the unyielding rule that legislative
actions may give breath to constitutional rights but congressional in
action should not suffocate them. 12
Thus, we have treated as self-executing the provisions in the Bill of Rights
on arrests, searches and seizures, 13 the rights of a person under
custodial investigation, 14 the rights of an accused, 15 and the privilege
against self-incrimination, 16 It is recognize a that legislation is
unnecessary to enable courts to effectuate constitutional provisions
guaranteeing the fundamental rights of life, liberty and the protection of
property. 17 The same treatment is accorded to constitutional provisions
forbidding the taking or damaging of property for public use without just
compensation.18
Contrariwise, case law lays down the rule that a constitutional provision is
not self-executing where it merely announces a policy and its language
empowers the Legislature to prescribe the means by which the policy
shall be carried into effect. 19 Accordingly, we have held that the
provisions in Article II of our Constitution entitled "Declaration of
Principles and State Policies" should generally be construed as mere
statements of principles of the State. 20 We have also ruled that some
provisions of Article XIII on "Social Justice and Human Rights," 21 and
Article XIV on "Education Science and Technology, Arts, Culture end
Sports" 22 cannot be the basis of judicially enforceable rights. Their
enforcement is addressed to the discretion of Congress though they
provide the framework for legislation 23 to effectuate their policy
content. 24
Guided by this map of settled jurisprudence, we now consider whether
Section 10, Article XII of the 1987 Constitution is self-executing or not. It
reads:
Sec. 10. The Congress shall, upon recommendation of the
economic and planning agency, when the national
interest dictates, reserve to citizens of the Philippines or
to corporations or associations at least sixty per centum of
whose capital is owned by such citizens, or such higher
percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will
encourage the formation and operation of enterprises
whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos.
The State shall regulate and exercise authority over
foreign investments within its national jurisdiction and in
accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of
investments in the country 25 to Filipino citizens or to
corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further
commands Congress to enact laws that will encourage the
formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders
the entire State to give preference to qualified Filipinos in the
grant of rights and privileges covering the national economy and
patrimony. The third paragraph also directs the State to regulate
foreign investments in line with our national goals and well-set
priorities.
The first paragraph of Section 10 is not self-executing. By its
express text, there is a categorical command for Congress to
enact laws restricting foreign ownership in certain areas of
405
 investments in the country and to encourage the formation and
operation of wholly-owned Filipino enterprises. The right granted
by the provision is clearly still in esse. Congress has to breathe life
to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973
Constitution. 27 The provision in the 1973 Constitution affirmed
our ruling in the landmark case of Lao Ichong v. Hernandez, 28
where we upheld the discretionary authority of Congress to
Filipinize certain areas of investments. 29 By reenacting the 1973
provision, the first paragraph of section 10 affirmed the power of
Congress to nationalize certain areas of investments in favor of
Filipinos.
The second and third paragraphs of Section 10 are different. They are
directed to the State and not to Congress alone which is but one of the
three great branches of our government. Their coverage is also broader
for they cover "the national economy and patrimony" and "foreign
investments within [the] national jurisdiction" and not merely "certain
areas of investments." Beyond debate, they cannot be read as granting
Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges
covering our national economy and patrimony. Their language does not
suggest that any of the State agency or instrumentality has the privilege
to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and
the third paragraphs of Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled
"Declaration of Principles and State Policies." Its Section 19 provides that
"[T]he State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos." It engrafts the all-important
Filipino First policy in our fundamental law and by the use of the
mandatory word "shall," directs its enforcement by the whole State
without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the
Manila Hotel Corporation involves the disposition of part of our national
patrimony. The records of the Constitutional Commission show that the
Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural
resources but also to the cultural heritage of our race. 30 By this
yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified
Filipinos in the grant of rights involving our national patrimony. The
unique value of the Manila Hotel to our history and culture cannot be
viewed with a myopic eye. The value of the hotel goes beyond pesos and
centavos. As chronicled by Beth Day Romulo, 31 the hotel first opened on
July 4, 1912 as a first-class hotel built by the American Insular Government
for Americans living in, or passing through, Manila while traveling to the
Orient. Indigenous materials and Filipino craftsmanship were utilized in its
construction, For sometime, it was exclusively used by American and
Caucasian travelers and served as the "official guesthouse" of the
American Insular Government for visiting foreign dignitaries. Filipinos
began coming to the Hotel as guests during the Commonwealth period.
When the Japanese occupied Manila, it served as military headquarters
and lodging for the highest-ranking officers from Tokyo. It was at the
Hotel and the Intramuros that the Japanese made their last stand during
the Liberation of Manila. After the war, the Hotel again served foreign
guests and Filipinos alike. Presidents and kings, premiers and potentates,
as well as glamorous international film and sports celebrities were
housed in the Hotel. It was also the situs of international conventions and
conferences. In the local scene, it was the venue of historic meetings,
parties and conventions of political parties. The Hotel has reaped and
continues reaping numerous recognitions and awards from international
hotel and travel award-giving bodies, a fitting acknowledgment of Filipino
talent and ingenuity. These are judicially cognizable facts which cannot be
bent by a biased mind.
The Hotel may not, as yet, have been declared a national cultural treasure
pursuant to Republic Act No. 4846 but that does not exclude it from our
national patrimony. Republic Act No. 4846, "The Cultural Properties
Preservation and Protection Act," merely provides a procedure whereby
a particular cultural property may be classified a "national cultural
treasure" or an "important cultural property. 32 Approved on June 18,
1966 and amended by P.D. 374 in 1974, the law is limited in its reach and
cannot be read as the exclusive law implementing section 10, Article XII of
406
the 1987 Constitution. To be sure, the law does not equate cultural xxx xxx xxx
treasure and cultural property as synonymous to the phrase "patrimony
of the nation." THE PRESIDENT. What is
the suggestion of
The third issue is whether the constitutional command to the State Commissioner Rodrigo? Is
includes the respondent GSIS. A look at its charter will reveal that GSIS is it to remove the word
a government-owned and controlled corporation that administers funds "QUALIFIED?"
that come from the monthly contributions of government employees and
the government. 33 The funds are held in trust for a distinct purpose MR. RODRIGO. No, no, but
which cannot be disposed of indifferently. 34 They are to be used to say definitely "TO
finance the retirement, disability and life insurance benefits of the QUALIFIED FILIPINOS" as
employees and the administrative and operational expenses of the GSIS, against whom? As against
35 Excess funds, however, are allowed to be invested in business and aliens over aliens?
other ventures for the benefit of the employees.36 It is thus contended
that the GSIS investment in the Manila Hotel Corporation is a simple MR. NOLLEDO. Madam
business venture, hence, an act beyond the contemplation of section 10, President, I think that is
paragraph 2 of Article XII of the Constitution. understood. We use the
word "QUALIFIED"
The submission is unimpressive. The GSIS is not a pure private because the existing laws
corporation. It is essentially a public corporation created by Congress and or the prospective laws
granted an original charter to serve a public purpose. It is subject to the will always lay down
jurisdictions of the Civil Service Commission 37 and the Commission on conditions under which
Audit. 38 As state-owned and controlled corporation, it is skin-bound to business map be done, for
adhere to the policies spelled out in the general welfare of the people. example, qualifications on
One of these policies is the Filipino First policy which the people elevated capital, qualifications on
as a constitutional command. the setting up of other
financial structures, et
The fourth issue demands that we look at the content of phrase cetera.
"qualified Filipinos" and their "preferential right." The Constitution
desisted from defining their contents. This is as it ought to be for a MR. RODRIGO. It is just a
Constitution only lays down flexible policies and principles which can bent matter of style.
to meet today's manifest needs and tomorrow's unmanifested demands.
Only a constitution strung with elasticity can grow as a living constitution. MR. NOLLEDO Yes.

Thus, during the deliberations in the Constitutional Commission, MR. RODRIGO. If we say,
Commissioner Nolledo to define the phrase brushed aside a suggestion to "PREFERENCE TO
define the phrase "qualified Filipinos." He explained that present and QUALIFIED FILIPINOS," it
prospective "laws" will take care of the problem of its interpretation, viz:
407
 can be understood as
giving preference to
qualified Filipinos as
against Filipinos who are
not qualified.
MR. NOLLEDO. Madam
President, that was the
intention of the
proponents. The
committee has accepted
the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce
the Filipino First policy is addressed to the State and not to
Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which
include applicable rules and regulations adopted by agencies and
instrumentalities of the State in the exercise of their rule-making
power. In the case at bar, the bidding rules and regulations set
forth the standards to measure the qualifications of bidders
Filipinos and foreigners alike. It is not seriously disputed that
petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which
GSIS should have accorded petitioner, a qualified Filipino, over Renong
Berhad, a foreigner, in the purchase of the controlling shares of the
Manila Hotel. Petitioner claims that after losing the bid, this right of
preference gives it a second chance to match the highest bid of Renong
Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind
from the premise that the second paragraph of section 10, Article XII of
the Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for it
gives preference to Filipinos. It is not, however, anti-alien per se for it
does not absolutely bar aliens in the grant of rights, privileges and
concessions covering the national economy and patrimony. Indeed, in the
absence of qualified Filipinos, the State is not prohibited from granting
these rights, privileges and concessions to foreigners if the act will
promote the weal of the nation.
In implementing the policy articulated in section 10, Article XII of the
Constitution, the stellar task of our State policy-makers is to maintain a
creative tension between two desiderata first, the need to develop our
economy and patrimony with the help of foreigners if necessary, and,
second, the need to keep our economy controlled by Filipinos. Rightfully,
the framers of the Constitution did not define the degree of the right of
preference to be given to qualified Filipinos. They knew that for the right
to serve the general welfare, it must have a malleable content that can be
adjusted by our policy-makers to meet the changing needs of our people.
In fine, the right of preference of qualified Filipinos is to be determined by
degree as time dictates and circumstances warrant. The lesser the need
for alien assistance, the greater the degree of the right of preference can
be given to Filipinos and vice verse.
Again, it should be stressed that the right and the duty to determine the
degree of this privilege at any given time is addressed to the entire State.
While under our constitutional scheme, the right primarily belongs to
Congress as the lawmaking department of our government, other
branches of government, and all their agencies and instrumentalities,
share the power to enforce this state policy. Within the limits of their
authority, they can act or promulgate rules and regulations defining the
degree of this right of preference in cases where they have to make
grants involving the national economy and judicial duty. On the other
hand, our duty is to strike down acts of the state that violate the policy.
To date, Congress has not enacted a law defining the degree of the
preferential right. Consequently, we must turn to the rules and
regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a
qualified Filipino in the subject sale. A tearless look at the rules and
regulations will show that they are silent on the degree of preferential
right to be accorded qualified Filipino bidder. Despite their silence,
however, they cannot be read to mean that they do not grant any degree
408
of preference to petitioner for paragraph 2, section 10, Article XII of the
Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them
from unconstitutionality, I submit that the right of preference of
petitioner arises only if it tied the bid of Benong Berhad. In that instance,
all things stand equal, and bidder, as a qualified Pilipino bidder, should be
preferred.
It is with deep regret that I cannot subscribe to the view that petitioner
has a right to match the bid of Renong Berhad. Petitioner's submission
must be supported by the rules but even if we examine the rules inside-
out .thousand times, they can not justify the claimed right. Under the
rules, the right to match the highest bid arises only "if for any reason, the
highest bidder cannot be awarded block of shares . . ." No reason has
arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest
bid. It was declared as the highest bidder by the GSIS and the rules say
this decision is final. It deserves the award as a matter of right for the
rules clearly did not give to the petitioner as a qualified Filipino privilege
to match the higher bid of a foreigner. What the rules did not grant,
petitioner cannot demand. Our symphaties may be with petitioner but
the court has no power to extend the latitude and longtitude of the right
of preference as defined by the rules. The parameters of the right of
preference depend on galaxy of facts and factors whose determination
belongs to the province of the policy-making branches and agencies of
the State. We are duty-bound to respect that determination even if we
differ with the wisdom of their judgment. The right they grant may be
little but we must uphold the grant for as long as the right of preference
is not denied. It is only when a State action amounts to a denial of the
right that the Court can come in and strike down the denial as
unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid
of Renong Berhad. Petitioner was aware of the rules and regulations of
the bidding. It knew that the rules and regulations do not provide that a
qualified Filipino bidder can match the winning bid submitting an inferior
bid. It knew that the bid was open to foreigners and that foreigners
qualified even during the first bidding. Petitioner cannot be allowed to
repudiate the rules which it agreed to respect. It cannot be allowed to
obey the rules when it wins and disregard them when it loses. If
sustained, petitioners' stance will wreak havoc on he essence of bidding.
Our laws, rules and regulations require highest bidding to raise as much
funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by
Filipinos and foreigners participating in a bidding contest and the rules
are carefully written to attain this objective. Among others, bidders are
prequalified to insure their financial capability. The bidding is secret and
the bids are sealed to prevent collusion among the parties. This objective
will be undermined if we grant petitioner that privilege to know the
winning bid and a chance to match it. For plainly, a second chance to bid
will encourage a bidder not to strive to give the highest bid in the first
bidding.
We support the Filipino First policy without any reservation. The visionary
nationalist Don Claro M. Recto has warned us that the greatest tragedy
that can befall a Filipino is to be an alien in his own land. The Constitution
has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we
wrong an alien. Our policy makers can write laws and rules giving favored
treatment to the Filipino but we are not free to be unfair to a foreigner
after writing the laws and the rules. After the laws are written, they must
be obeyed as written, by Filipinos and foreigners alike. The equal
protection clause of the Constitution protects all against unfairness. We
can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.
PANGANIBAN, J., dissenting:
I regret I cannot join the majority. To the incisive Dissenting Opinion of
Mr. Justice Reynato S. Puno, may I just add
409
1. The majority contends the Constitution should be interpreted to mean
that, after a bidding process is concluded, the losing Filipino bidder
should be given the right to equal the highest foreign bid, and thus to
win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in
the grant of rights . . . covering the national economy and patrimony, the
State shall give preference to qualified Filipinos." The majority concedes
that there is no law defining the extent or degree of such preference.
Specifically, no statute empowers a losing Filipino bidder to increase his bid
and equal that of the winning foreigner. In the absence of such
empowering law, the majority's strained interpretation, I respectfully
submit constitutes unadulterated judicial legislation, which makes bidding
a ridiculous sham where no Filipino can lose and where no foreigner can
win. Only in the Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-
sighted and, viewed properly, gravely prejudicial to long-term Filipino
interest. It encourages other countries in the guise of reverse comity
or worse, unabashed retaliation to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and
defeat the higher bids of Filipino enterprises solely, while on the other
hand, allowing similar bids of other foreigners to remain unchallenged by
their nationals. The majority's thesis will thus marginalize Filipinos as
pariahs in the global marketplace with absolute no chance of winning any
bidding outside our country. Even authoritarian regimes and hermit
kingdoms have long ago found out unfairness, greed and isolation are
self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont
want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino
First" policy of the Constitution, the constitutional preference for the
"qualified Filipinos" may be allowed only where all the bids are equal. In
this manner, we put the Filipino ahead without self-destructing him and
without being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only
when the scores are tied. But not when the ballgame is over and the
foreigner clearly posted the highest score.
Separate Opinions
PADILLA, J., concurring:
I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I
would like to expound a bit more on the concept of national patrimony as
including within its scope and meaning institutions such as the Manila
Hotel.
It is argued by petitioner that the Manila Hotel comes under "national
patrimony" over which qualified Filipinos have the preference, in
ownership and operation. The Constitutional provision on point states:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall Give
preference to qualified Filipinos.1
Petitioner's argument, I believe, is well taken. Under the 1987
Constitution, "national patrimony" consists of the natural resources
provided by Almighty God (Preamble) in our territory (Article I) consisting
of land, sea, and air.2 study of the 1935 Constitution, where the concept
of "national patrimony" originated, would show that its framers decided
to adopt the even more comprehensive expression "Patrimony of the
Nation" in the belief that the phrase encircles a concept embracing not
only their natural resources of the country but practically everything that
belongs to the Filipino people, the tangible and the material as well as the
intangible and the spiritual assets and possessions of the people. It is to
be noted that the framers did not stop with conservation. They knew that
conservation alone does not spell progress; and that this may be achieved
410
only through development as a correlative factor to assure to the people
not only the exclusive ownership, but also the exclusive benefits of their
national patrimony).3
Moreover, the concept of national patrimony has been viewed as
referring not only to our rich natural resources but also to the cultural
heritage of our
race.4
There is no doubt in my mind that the Manila Hotel is very much a part of
our national patrimony and, as such, deserves constitutional protection
as to who shall own it and benefit from its operation. This institution has
played an important role in our nation's history, having been the venue of
many a historical event, and serving as it did, and as it does, as the
Philippine Guest House for visiting foreign heads of state, dignitaries,
celebrities, and others.5
It is therefore our duty to protect and preserve it for future generations
of Filipinos. As President Manuel L. Quezon once said, we must exploit
the natural resources of our country, but we should do so with. an eye to
the welfare of the future generations. In other words, the leaders of
today are the trustees of the patrimony of our race. To preserve our
national patrimony and reserve it for Filipinos was the intent of the
distinguished gentlemen who first framed our Constitution. Thus, in
debating the need for nationalization of our lands and natural resources,
one expounded that we should "put more teeth into our laws, and; not
make the nationalization of our lands and natural resources a subject of
ordinary legislation but of constitutional enactment"6 To quote further:
"Let not our children be mere tenants and trespassers in their own
country. Let us preserve and bequeath to them what is rightfully theirs,
free from all foreign liens and encumbrances".7
Now, a word on preference. In my view "preference to qualified
Filipinos", to be meaningful, must refer not only to things that are
peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the
acquisition of things that pertain to the national patrimony, preference to
qualified Filipinos must allow a qualified Filipino to match or equal the
higher bid of a non-Filipino; the preference shall not operate only when
the bids of the qualified Filipino and the non-Filipino are equal in which
case, the award should undisputedly be made to the qualified Filipino.
The Constitutional preference should give the qualified Filipino an
opportunity to match or equal the higher bid of the non-Filipino bidder if
the preference of the qualified Filipino bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards
foreign investments in our country, stress is on the elimination of barriers
to foreign trade and investment in the country. While government
agencies, including the courts should re-condition their thinking to such a
trend, and make it easy and even attractive for foreign investors to come
to our shores, yet we should not preclude ourselves from reserving to us
Filipinos certain areas where our national identity, culture and heritage
are involved. In the hotel industry, for instance, foreign investors have
established themselves creditably, such as in the Shangri-La, the Nikko,
the Peninsula, and Mandarin Hotels. This should not stop us from
retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino
people to preserve our national patrimony, including our historical and
cultural heritage in the hands of Filipinos.
VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements,
shared by Mr. Justice Reynato S. Puno in a well written separate
(dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the
grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified
Filipinos"1 is self-executory. The provision verily does not need, although
it can obviously be amplified or regulated by, an enabling law or a set of
rules.
Second, the term "patrimony" does not merely refer to the country's
natural resources but also to its cultural heritage. A "historical landmark,"
411
to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now
indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a
government entity which derives its authority from the State, in selling
51% of its share in MHC should be considered an act of the State subject to
the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I
find it somewhat difficult to take the same path traversed by the forceful
reasoning of Justice Puno. In the particular case before us, the only
meaningful preference, it seems, would really be to allow the qualified
Filipino to match the foreign bid for, as a particular matter, I cannot see
any bid that literally calls for millions of dollars to be at par (to the last
cent) with another. The magnitude of the magnitude of the bids is such
that it becomes hardly possible for the competing bids to stand exactly
"equal" which alone, under the dissenting view, could trigger the right of
preference.
It is most unfortunate that Renong Berhad has not been spared this great
disappointment, a letdown that it did not deserve, by a simple and timely
advise of the proper rules of bidding along with the peculiar
constitutional implications of the proposed transaction. It is also
regrettable that the Court at time is seen, to instead, be the refuge for
bureaucratic inadequate which create the perception that it even takes
on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only
way to enforce the constitutional mandate that "[i]n the grant of rights,
privileges and concessions covering the national patrimony the State shall
give preference to qualified Filipinos"1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the
purchase of the controlling shares of stocks in the Manila Hotel
Corporation. Indeed, it is the only way a qualified Filipino of Philippine
corporation can be given preference in the enjoyment of a right, privilege
or concession given by the State, by favoring it over a foreign national
corporation.
Under the rules on public bidding of the Government Service and
Insurance System, if petitioner and the Malaysian firm had offered the
same price per share, "priority [would be given] to the bidder seeking the
larger ownership interest in MHC,"2 so that petitioner bid for more
shares, it would be preferred to the Malaysian corporation for that
reason and not because it is a Philippine corporation. Consequently, it is
only in cases like the present one, where an alien corporation is the
highest bidder, that preferential treatment of the Philippine corporation
is mandated not by declaring it winner but by allowing it "to match the
highest bid in terms of price per share" before it is awarded the shares of
stocks.3 That, to me, is what "preference to qualified Filipinos" means in
the context of this case by favoring Filipinos whenever they are at a
disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute
giving "preference to Filipino citizens in the lease of public market
stalls."5 This Court upheld the cancellation of existing leases covering
market stalls occupied by persons who were not Filipinos and the award
thereafter of the stalls to qualified Filipino vendors as ordered by the
Department of Finance. Similarly, in Vda. de Salgado v. De la Fuente,6 this
Court sustained the validity of a municipal ordinance passed pursuant to
the statute (R.A. No. 37), terminating existing leases of public market
stalls and granting preference to Filipino citizens in the issuance of new
licenses for the occupancy of the stalls. In Chua Lao v. Raymundo,7 the
preference granted under the statute was held to apply to cases in which
Filipino vendors sought the same stalls occupied by alien vendors in the
public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a
conflict of interest between Filipino applicants and aliens for lease of
stalls in public markets, in which situation the right to preference
immediately arises."8
412
Our legislation on the matter thus antedated by a quarter of a century
efforts began only in the 1970s in America to realize the promise of
equality, through affirmative action and reverse discrimination programs
designed to remedy past discrimination against colored people in such
areas as employment, contracting and licensing.9 Indeed, in vital areas of
our national economy, there are situations in which the only way to place
Filipinos in control of the national economy as contemplated in the
Constitution 10 is to give them preferential treatment where they can at
least stand on equal footing with aliens.
There need be no fear that thus preferring Filipinos would either invite
foreign retaliation or deprive the country of the benefit of foreign capital
or know-how. We are dealing here not with common trades of common
means of livelihood which are open to aliens in our midst, 11 but with the
sale of government property, which is like the grant of government
largess of benefits and concessions covering the national economy" and
therefore no one should begrudge us if we give preferential treatment to
our citizens. That at any rate is the command of the Constitution. For the
Manila Hotel is a business owned by the Government. It is being
privatized. Privatization should result in the relinquishment of the
business in favor of private individuals and groups who are Filipino
citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to
petitioner we would be trading competence and capability for
nationalism. Both petitioner and the Malaysian firm are qualified, having
hurdled the prequalification process. 12 It is only the result of the public
bidding that is sought to be modified by enabling petitioner to up its bid
to equal the highest bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino
bidder to match the highest bid of an alien could encourage speculation,
since all that a Filipino entity would then do would be not to make a bid
or make only a token one and, after it is known that a foreign bidder has
submitted the highest bid, make an offer matching that of the foreign
firm. This is not possible under the rules on public bidding of the GSIS.
Under these rules there is a minimum bid required (P36.87 per share for a
range of 9 to 15 million shares). 13 Bids below the minimum will not be
considered. On the other hand, if the Filipino entity, after passing the
prequalification process, does not submit a bid, he will not be allowed to
match the highest bid of the foreign firm because this is a privilege
allowed only to those who have "validly submitted bids." 14 The
suggestion is, to say the least, fanciful and has no basis in fact.
For the foregoing reasons, I vote to grant the petition.
TORRES, JR., J., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we
are not confronted in the case at bar with legal and constitutional issues
and yet I am driven so to speak on the side of history. The reason
perhaps is due to the belief that in the words of Justice Oliver Wendell
Holmes, Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila
Hotel has a historical and cultural aspect within the meaning of the
constitution and thus, forming part of the "patrimony of the nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos.
The State shall regulate and exercise authority over
foreign investments within its national goals and
priorities.
The foregoing provisions should be read in conjunction with Article II of
the same Constitution pertaining to "Declaration of Principles and State
Policies" which ordain
413
 The State shall develop a self-reliant and independent So that it is now in our
national economy effectively by Filipinos. (Sec. 19). Constitution (Vol. IV,
Records of the
Interestingly, the matter of giving preference to "qualified Filipinos" was Constitutional
one of the highlights in the 1987 Constitution Commission proceedings Commission, p. 225).
thus:
Commissioner Jose Nolledo explaining the provision
xxx xxx xxx adverted to above, said:

MR. NOLLEDO. The MR. NOLLEDO. In the

Amendment will read: "IN grant of rights, privileges
THE GRANT OF RIGHTS, and concessions covering
PRIVILEGES AND the national economy and
CONCESSIONS COVERING patrimony, the State shall
THE NATIONAL ECONOMY give preference to
AND PATRIMONY, THE qualified Filipinos.
STATE SHALL GIVE
PREFERENCE TO MR. FOZ. In connection
QUALIFIED FILIPINOS". with that amendment, if a
And the word "Filipinos" foreign enterprise is
here, as intended by the qualified and the Filipinos
proponents, will include enterprise is also qualified,
not only individual Filipinos will the Filipino enterprise
but also Filipino-Controlled still be given a preference?
entities fully controlled by
Filipinos (Vol. III, Records MR. NOLLEDO. Obviously.
of the Constitutional
Commission, p. 608). MR. FOZ. If the foreigner is
more qualified in some
MR. MONSOD. We also aspects than the Filipino
wanted to add, as enterprise, will the Filipino
Commissioner Villegas still be preferred:?
said, this committee and
this body already MR. NOLLEDO. The
approved what is known answer is "yes". (Vol. III, p.
as the Filipino First policy 616, Records of the
which was suggested by
Commissioner de Castro.
414
 Constitutional
Commission).
The nationalistic provisions of the 1987 Constitution reflect the history
and spirit of the Malolos Constitution of 1898, the 1935 Constitution and
the 1973 Constitutions. That we have no reneged on this nationalist policy
is articulated in one of the earliest case, this Court said
The nationalistic tendency is manifested in various
provisions of the Constitution. . . . It cannot therefore be
said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is
unreasonable, invalid or unconstitutional (Ichong, et al.
vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are
not legislated and is the product of events, customs, usages and
practices. It is actually a product of growth and acceptance by the
collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of
the Manila Hotel is witness to historic events (too numerous to mention)
which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the
single instances of the legal largese which have given rise to this
controversy. As I believe that has been exhaustively discussed in the
ponencia. Suffice it to say at this point that the history of the Manila Hotel
should not be placed in the auction block of a purely business transaction,
where profits subverts the cherished historical values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its
enviable tradition which, in the words of the philosopher Salvador de
Madarriaga tradition is "more of a river than a stone, it keeps flowing,
and one must view the flowing , and one must view the flow of both
directions. If you look towards the hill from which the river flows, you see
tradition in the form of forceful currents that push the river or people
towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the
kind of tradition. Let us not jettison the tradition of the Manila Hotel and
thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different
lights.
I remember, however, a Spanish proverb which says "He is always
right who suspects that he makes mistakes". On this note, I say that if I
have to make a mistake, I would rather err upholding the belief that the
Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.
PUNO, J., dissenting:
This is a. petition for prohibition and mandamus filed by the Manila Prince
Hotel Corporation, a domestic corporation, to stop the Government
Service Insurance System (GSIS) from selling the controlling shares of the
Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the
Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is
the sole owner of the Manila Hotel which it operates through its
subsidiary, the Manila Hotel Corporation. Manila Hotel was included in
the privatization program of the government. In 1995, GSIS proposed to
sell to interested buyers 30% to 51% of its shares, ranging from 9,000,000
to 15,300,000 shares, in the Manila Hotel Corporation. After the absence
of bids at the first public bidding, the block of shares offered for sale was
increased from a maximum of 30% to 51%. Also, the winning bidder, or the
eventual "strategic partner" of the GSIS was required to "provide
415
management expertise and/or an international marketing/reservation The Winning Bidder/Strategic Partner will
system, and financial support to strengthen the profitability and be expected to provide management
performance of the Manila Hotel"1 The proposal was approved by expertise and/or an international
respondent Committee on Privatization. marketing reservation system, and
financial support to strengthen the
In July 1995, a conference was held where prequalification documents profitability and performance of The
and the bidding rules were furnished interested parties. Petitioner Manila Manila Hotel. In this context, the GSIS is
Prince Hotel, a domestic corporation, and Renong Berhad, Malaysian firm inviting to the prequalification process any
with ITT Sheraton as operator, prequalified.2 local and/or foreign corporation,
consortium/joint venture or juridical entity
The bidding rules and procedures entitled "Guidelines and Procedures: with at least one of the following
Second Prequalification and Public Bidding of the MHC Privatization" qualifications:
provide:
a. Proven management
I INTRODUCTION AND HIGHLIGHTS .expertise in the hotel
industry; or
DETERMINING THE WINNING BIDDER/STRATEGIC
PARTNER b. Significant equity
ownership (i.e. board
The party that accomplishes the steps set forth below will representation) in another
be declared the Winning Bidder/Strategic Partner and will hotel company; or
be awarded the Block of Shares:
c. Overall management
First Pass the prequalification process; and marketing expertise to
successfully operate the
Second Submit the highest bid on a price per share Manila Hotel.
basis for the Block of Shares;
Parties interested in bidding for MHC
Third Negotiate and execute the necessary contracts should be able to provide access to the
with GSIS/MHC not later than October 23, 1995; requisite management expertise and/or
international marketing/reservation
xxx xxx xxx system for The Manila Hotel.

IV GUIDELINES FOR PREQUALIFICATION xxx xxx xxx

A. PARTIES WHO MAP APPLY FOR D. PREQUALIFICATION DOCUMENTS

PREQUALIFICATION

416
xxx xxx xxx procedures. Only those who purchased
the prequalification documents will be
E. APPLICATION PROCEDURE allowed in this conference. Attendance to
this conference is strongly advised,
1. DOCUMENTS AVAILABLE AT THE although the Applicant will not be
REGISTRATION OFFICE penalized if it does not attend.

The prequalification documents can be 5. SUBMISSION OF PREQUALIFICATION DOCUMENTS

secured at the Registration Office
between 9:00 AM to 4:00 PM during
working days within the period specified
in Section III. Each set of documents
consists of the following:
a. Guidelines and
Procedures: Second
Prequalification and Public
Bidding of the MHC
Privatization
b. Confidential Information
Memorandum: The Manila
Hotel Corporation
c. Letter of Invitation. to
the Prequalification and
Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference
will be held at The Manila Hotel on the
date specified in Section III to allow the
Applicant to seek clarifications and further
information regarding the guidelines and
The applicant should submit 5 sets of the
prequalification documents (1 original set
plus 4 copies) at the Registration Office
between 9:00 AM to 4:00 PM during
working days within the period specified
in Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be
evaluated by the PBAC
with the assistance of the
TEC based on the
Information Package and
other information
available to the PBAC.
2. If the Applicant is a
Consortium/Joint Venture,
the evaluation will
consider the overall
qualifications of the group,
taking into account the
contribution of each
member to the venture.
3. The decision of the
PBAC with respect to the

417
 results of the PBAC participate in the Public Bidding without
evaluation will be final. having to undergo the prequalification
process again.
4. The Applicant shall be
evaluated according to the G. SHORTLIST OF QUALIFIED BIDDERS
criteria set forth below:
1. A notice of prequalification results
a. Business containing the shortlist of Qualified
manageme Bidders will be posted at the Registration
nt Office at the date specified in Section III.
expertise,
track 2. In the case of a Consortium/Joint
record, and Venture, the withdrawal by member
experience whose qualification was a material
consideration for being included in the
b. Financial shortlist is ground for disqualification of
capability. the Applicant.

c. V. GUIDELINES FOR THE PUBLIC BIDDING

Feasibility
and A. PARTIES WHO MAY PARTICIPATE IN
acceptabilit THE PUBLIC BIDDING
y of the
proposed All parties in the shortlist of Qualified
strategic Bidders will be eligible to participate in the
plan for Public Bidding.
the Manila
Hotel B. BLOCK OF SHARES

5. The PBAC will shortlist such number of
Applicants as it may deem appropriate.
6. The parties that prequalified in the first
MHC public bidding ITT Sheraton,
Marriot International Inc., Renaissance
Hotels International Inc., consortium of
RCBC Capital/Ritz Carlton may
A range of Nine Million (9,000,000) to
Fifteen Million Three Hundred Thousand
(15,300,000) shares of stock representing
Thirty Percent to Fifty-One Percent (30%-
51%) of the issued and outstanding shares
of MHC, will be offered in the Public
Bidding by the GSIS. The Qualified Bidders
will have the Option of determining the

418
 number of shares within the range to bid
for. The range is intended to attract
bidders with different preferences and
objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE
PER SHARE BASIS
1. Bids will be evaluated on a price per
share basis. The minimum bid required on
a price per share basis for the Block of
Shares is Thirty-Six Pesos and Sixty-Seven
Centavos (P36.67).
2. Bids should be in the Philippine currency
payable to the GSIS.
3. Bids submitted with an equivalent price
per share below the minimum required
will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed
Official Bid Form, a copy of which is
attached as Annex IV. The Official Bid
Form must be properly accomplished in all
details; improper accomplishment may be
a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified
Bidder will submit the Official Bid Form,
which will indicate the offered purchase
price, in a sealed envelope marked
"OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following
documents should be submitted along
with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER
OATH).
If the Qualified Bidder is a corporation, the
representative of the Qualified Bidder
should submit a Board resolution which
adequately authorizes such representative
to bid for and in behalf of the corporation
with full authority to perform such acts
necessary or requisite to bind the
Qualified Bidder.
If the Qualified Bidder is a
Consortium/Joint Venture, each member
of the Consortium/Joint venture should
submit a Board resolution authorizing one
of its members and such member's
representative to make the bid on behalf
of the group with full authority to perform
such acts necessary or requisite to bind
the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit
Thirty-Three Million Pesos (P33,000,00), in
419
 Philippine currency as Bid Security in the
form of:
i. Manager's check or
unconditional demand
draft payable to the
"Government Service
Insurance System" and
issued by a reputable
banking institution duly
licensed to do business in
the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of
credit issued by a contract specified by the Highest Bidder in
reputable banking
institution acceptable to
the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have
Bid Security; or
ii. The Bid Security
accompanying the bid is
for less than the required
amount.
c. If the Bid Security is in the form of a
manager's check or unconditional demand
draft, the interest earned on the Bid
Security will be for the account of GSIS.
d. If the Qualified Bidder becomes the
winning Bidder/Strategic Partner, the Bid
Security will be applied as the
downpayment on the Qualified Bidder's
offered purchase price.
e. The Bid Security of the Qualified Bidder
will be returned immediately after the
Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by
October 23, 1995 if the Highest Bidder is
unable to negotiate and execute with
GSIS/MHC the Management Contract,
International Marketing/Reservation
System Contract or other types of
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder
will be forfeited in favor of GSIS if the
Highest Bidder, after negotiating and
executing the Management Contract,
International Marketing/Reservation
System Contract specified by the Highest
Bidder or other types of contract in its
strategic plan for The Manila Hotel, fails or
refuses to:
i. Execute the Stock
Purchase and Sale
Agreement with GSIS not
later than October 23,
1995; or
ii. Pay the full amount of
the offered purchase price
not later than October 23,
1995; or
420
 iii. Consummate the sale of
the Block of Shares for any
other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on
September 7, 1995 at the following
location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro
Manila.
2. The Secretariat of the PBAC will be
stationed at the Public Bidding to accept
any and all bids and supporting
requirements. Representatives from the
Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its
bid using the Official Bid Form. The
accomplished Official Bid Form should be
submitted in a sealed envelope marked
"OFFICIAL BID."
4. The Qualified Bidder should submit the
following documents in another sealed
envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked
"OFFICIAL BID" and "SUPPORTING BID
DOCUMENTS" must be submitted
simultaneously to the Secretariat between
9:00 AM and 2:00 PM, Philippine Standard
Time, on the date of the Public Bidding.
No bid shall be accepted after the closing
time. Opened or tampered bids shall not
be accepted.
6. The Secretariat will log and record the
actual time of submission of the two
sealed envelopes. The actual time of
submission will also be indicated by the
Secretariat on the face of the two
envelopes.
7. After Step No. 6, the two sealed
envelopes will be dropped in the
corresponding bid boxes provided for the
purpose. These boxes will be in full view
of the invited public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the
date of the Public Bidding, the PBAC will
open all sealed envelopes marked
"SUPPORTING BID DOCUMENTS" for
screening, evaluation and acceptance.
Those who submitted
incomplete/insufficient documents or
document/s which is/are not substantially
in the form required by PBAC will be
disqualified. The envelope containing their
Official Bid Form will be immediately
returned to the disqualified bidders.
421
2. The sealed envelopes marked "OFFICIAL a. The Highest Bidder must
BID" will be opened at 3:00 PM. The name negotiate and execute
of the bidder and the amount of its bid with GSIS/MHC the
price will be read publicly as the envelopes Management Contract,
are opened. International Marketing
Reservation System
3. Immediately following the reading of Contract or other type of
the bids, the PBAC will formally announce contract specified by the
the highest bid and the Highest Bidder. Highest Bidder in its
strategic plan for The
4. The highest bid will be, determined on a Manila Hotel. If the
price per share basis. In the event of a tie Highest Bidder is intending
wherein two or more bids have the same to provide only financial
equivalent price per share, priority will be support to The Manila
given to the bidder seeking the larger Hotel, a separate
ownership interest in MHC. institution may enter into
the aforementioned
5. The Public Bidding will be declared a contract/s with GSIS/MHC.
failed bidding in case:
b. The Highest Bidder must
a. No single bid is execute the Stock
submitted within the Purchase and Sale
prescribed period; or Agreement with GSIS, a
copy of which will be
b. There is only one (1) bid distributed to each of the
that is submitted and Qualified Bidder after the
acceptable to the PBAC. prequalification process is
completed.
I. EXECUTION OF THE NECESSARY
CONTRACTS WITH GSIS/MHC 2. In the event that the Highest Bidder
chooses a Management Contract for The
1. The Highest Bidder must comply with Manila Hotel, the maximum levels for the
the conditions set forth below by October management fee structure that GSIS/MHC
23, 1995 or the Highest Bidder will lose the are prepared to accept in the
right to purchase the Block of Shares and Management Contract are as follows:
GSIS will instead offer the Block of Shares
to the other Qualified Bidders:

422
 a. Basic management fee:
Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum
of 8.0% of gross operating
profit(1) after deducting
undistributed overhead
expenses and the basic
management fee.
c. Fixed component of the
international
marketing/reservation
system fee: Maximum of
2.0% of gross room
revenues.(1) The Applicant
should indicate in its
Information Package if it is
wishes to charge this fee.
Note (1): As defined in the uniform system
of account for hotels.
The GSIS/MHC have indicated above the
acceptable parameters for the hotel
management fees to facilitate the
negotiations with the Highest Bidder for
the Management Contract after the Public
Bidding.
A Qualified Bidder envisioning a
Management Contract for The Manila
Hotel should determine whether or not
the management fee structure above is
acceptable before submitting their
prequalification documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder
cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified
Bidders that have validly submitted bids
provided that these Qualified are willing to
match the highest bid in terms of price per
share.
2. The order of priority among the
interested Qualified Bidders will be in
accordance wit the equivalent price per
share of their respective bids in their
public Bidding, i.e., first and second
priority will be given to the Qualified
Bidders that submitted the second and
third highest bids on the price per share
basis, respectively, and so on.
K. DECLARATION OF THE WINNING
BIDDER/STRATEGIC PARTNER
The Highest Bidder will be declared the
Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the
necessary contract with
GSIS/MHC not later than
October 23, 1995; and
b. Requisite approvals
from the GSIS/MHC and
COP/OGCC are obtained.
423
I. FULL PAYMENT FOR THE BLOCK OF
SHARES
1. Upon execution of the necessary
contracts with GSIS/MHC, the Winning
Bidder/Strategic Partner must fully pay,
not later than October 23, 1995, the
offered purchase price for the Block of
Shares after deducting the Bid Security
applied as downpayment.
2. All payments should be made in the
form of a Manager's Check or
unconditional Demand Draft, payable to
the "Government Service Insurance
System," issued by a reputable banking
institution licensed to do business in the
Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the
right to reject any or all applications,
waive any formality therein, or accept
such application as maybe considered
most advantageous to the GSIS. The GSIS
similarly reserves the right to require the
submission of any additional information
from the Applicant as the PBAC may deem
necessary.
2. The GSIS further reserves the right to
call off the Public Bidding prior to
acceptance of the bids and call for a new
public bidding under amended rules, and
without any liability whatsoever to any or
all the Qualified Bidders, except the
obligation to return the Bid Security.
3. The GSIS reserves the right to reset the
date of the prequalification/bidding
conference, the deadline for the
submission of the prequalification
documents, the date of the Public Bidding
or other pertinent activities at least three
(3) calendar days prior to the respective
deadlines/target dates.
4. The GSIS sells only whatever rights,
interest and participation it has on the
Block of Shares.
5. All documents and materials submitted
by the Qualified Bidders, except the Bid
Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the
results of the Public Bidding is final. The
Qualified Bidders, by participating in the
Public Bidding, are deemed to have
agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless
form any liability, suit or allegation arising
out of the Public Bidding by the Qualified
Bidders who have participated in the
Public Bidding.3
The second public bidding was held on September 18, 1995. Petitioner
bidded P41.00 per share for 15,300,000 shares and Renong Berhad bidded
P44.00 per share also for 15,300,000 shares. The GSIS declared Renong
Berhad the highest bidder and immediately returned petitioner's bid
security.
424
On September 28, 1995, ten days after the bidding, petitioner wrote to
GSIS offering to match the bid price of Renong Berhad. It requested that
the award be made to itself citing the second paragraph of Section 10,
Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad
the terms and conditions of the contract and technical agreements in the
operation of the hotel, refused to entertain petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary
restraining order on October 18, 1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section
10 of the Constitution4 on the "National Economy and Patrimony" which
provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the
Constitution is a self-executing provision and does not
need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-
executing whether the controlling shares of the Manila
Hotel Corporation form part of our patrimony as a nation;
(3) Whether GSIS is included in the term "State," hence,
mandated to implement section 10, paragraph 2 of Article
XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to
give preference to petitioner, a qualified Filipino
corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the
Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the
sale of the shares to Renong Berhad, a foreign
corporation.
Anent the first issue, it is now familiar learning that a Constitution
provides the guiding policies and principles upon which is built the
substantial foundation and general framework of the law and
government.5 As a rule, its provisions are deemed self-executing and can
be enforced without further legislative action.6 Some of its provisions,
however, can be implemented only through appropriate laws enacted by
the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-
executing is a hard row to hoe. The key lies on the intent of the framers
of the fundamental law oftentimes submerged in its language. A
searching inquiry should be made to find out if the provision is intended
as a present enactment, complete in itself as a definitive law, or if it needs
future legislation for completion and enforcement.7 The inquiry demands
a micro-analysis of the text and the context of the provision in question.8
Courts as a rule consider the provisions of the Constitution as self-
executing,9 rather than as requiring future legislation for their
enforcement. 10 The reason is not difficult to discern. For if they are not
treated as self-executing, the mandate of the fundamental law ratified by
the sovereign people can be easily ignored and nullified by Congress. 11
Suffused with wisdom of the ages is the unyielding rule that legislative
actions may give breath to constitutional rights but congressional in
action should not suffocate them. 12
425
Thus, we have treated as self-executing the provisions in the Bill of Rights
on arrests, searches and seizures, 13 the rights of a person under
custodial investigation, 14 the rights of an accused, 15 and the privilege
against self-incrimination, 16 It is recognize a that legislation is
unnecessary to enable courts to effectuate constitutional provisions
guaranteeing the fundamental rights of life, liberty and the protection of
property. 17 The same treatment is accorded to constitutional provisions
forbidding the taking or damaging of property for public use without just
compensation.18
Contrariwise, case law lays down the rule that a constitutional provision is
not self-executing where it merely announces a policy and its language
empowers the Legislature to prescribe the means by which the policy
shall be carried into effect. 19 Accordingly, we have held that the
provisions in Article II of our Constitution entitled "Declaration of
Principles and State Policies" should generally be construed as mere
statements of principles of the State. 20 We have also ruled that some
provisions of Article XIII on "Social Justice and Human Rights," 21 and
Article XIV on "Education Science and Technology, Arts, Culture end
Sports" 22 cannot be the basis of judicially enforceable rights. Their
enforcement is addressed to the discretion of Congress though they
provide the framework for legislation 23 to effectuate their policy
content. 24
Guided by this map of settled jurisprudence, we now consider whether
Section 10, Article XII of the 1987 Constitution is self-executing or not. It
reads:
Sec. 10. The Congress shall, upon recommendation of the
economic and planning agency, when the national
interest dictates, reserve to citizens of the Philippines or
to corporations or associations at least sixty per centum of
whose capital is owned by such citizens, or such higher
percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will
encourage the formation and operation of enterprises
whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos.
The State shall regulate and exercise authority over
foreign investments within its national jurisdiction and in
accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of
investments in the country 25 to Filipino citizens or to
corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further
commands Congress to enact laws that will encourage the
formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders
the entire State to give preference to qualified Filipinos in the
grant of rights and privileges covering the national economy and
patrimony. The third paragraph also directs the State to regulate
foreign investments in line with our national goals and well-set
priorities.
The first paragraph of Section 10 is not self-executing. By its
express text, there is a categorical command for Congress to
enact laws restricting foreign ownership in certain areas of
investments in the country and to encourage the formation and
operation of wholly-owned Filipino enterprises. The right granted
by the provision is clearly still in esse. Congress has to breathe life
to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973
Constitution. 27 The provision in the 1973 Constitution affirmed
our ruling in the landmark case of Lao Ichong v. Hernandez, 28
where we upheld the discretionary authority of Congress to
Filipinize certain areas of investments. 29 By reenacting the 1973
provision, the first paragraph of section 10 affirmed the power of
Congress to nationalize certain areas of investments in favor of
Filipinos.
426
The second and third paragraphs of Section 10 are different. They are
directed to the State and not to Congress alone which is but one of the
three great branches of our government. Their coverage is also broader
for they cover "the national economy and patrimony" and "foreign
investments within [the] national jurisdiction" and not merely "certain
areas of investments." Beyond debate, they cannot be read as granting
Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges
covering our national economy and patrimony. Their language does not
suggest that any of the State agency or instrumentality has the privilege
to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and
the third paragraphs of Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled
"Declaration of Principles and State Policies." Its Section 19 provides that
"[T]he State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos." It engrafts the all-important
Filipino First policy in our fundamental law and by the use of the
mandatory word "shall," directs its enforcement by the whole State
without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the
Manila Hotel Corporation involves the disposition of part of our national
patrimony. The records of the Constitutional Commission show that the
Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural
resources but also to the cultural heritage of our race. 30 By this
yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified
Filipinos in the grant of rights involving our national patrimony. The
unique value of the Manila Hotel to our history and culture cannot be
viewed with a myopic eye. The value of the hotel goes beyond pesos and
centavos. As chronicled by Beth Day Romulo, 31 the hotel first opened on
July 4, 1912 as a first-class hotel built by the American Insular Government
for Americans living in, or passing through, Manila while traveling to the
Orient. Indigenous materials and Filipino craftsmanship were utilized in its
construction, For sometime, it was exclusively used by American and
Caucasian travelers and served as the "official guesthouse" of the
American Insular Government for visiting foreign dignitaries. Filipinos
began coming to the Hotel as guests during the Commonwealth period.
When the Japanese occupied Manila, it served as military headquarters
and lodging for the highest-ranking officers from Tokyo. It was at the
Hotel and the Intramuros that the Japanese made their last stand during
the Liberation of Manila. After the war, the Hotel again served foreign
guests and Filipinos alike. Presidents and kings, premiers and potentates,
as well as glamorous international film and sports celebrities were
housed in the Hotel. It was also the situs of international conventions and
conferences. In the local scene, it was the venue of historic meetings,
parties and conventions of political parties. The Hotel has reaped and
continues reaping numerous recognitions and awards from international
hotel and travel award-giving bodies, a fitting acknowledgment of Filipino
talent and ingenuity. These are judicially cognizable facts which cannot be
bent by a biased mind.
The Hotel may not, as yet, have been declared a national cultural treasure
pursuant to Republic Act No. 4846 but that does not exclude it from our
national patrimony. Republic Act No. 4846, "The Cultural Properties
Preservation and Protection Act," merely provides a procedure whereby
a particular cultural property may be classified a "national cultural
treasure" or an "important cultural property. 32 Approved on June 18,
1966 and amended by P.D. 374 in 1974, the law is limited in its reach and
cannot be read as the exclusive law implementing section 10, Article XII of
the 1987 Constitution. To be sure, the law does not equate cultural
treasure and cultural property as synonymous to the phrase "patrimony
of the nation."
The third issue is whether the constitutional command to the State
includes the respondent GSIS. A look at its charter will reveal that GSIS is
a government-owned and controlled corporation that administers funds
that come from the monthly contributions of government employees and
the government. 33 The funds are held in trust for a distinct purpose
which cannot be disposed of indifferently. 34 They are to be used to
finance the retirement, disability and life insurance benefits of the
employees and the administrative and operational expenses of the GSIS,
35 Excess funds, however, are allowed to be invested in business and
427
other ventures for the benefit of the employees.36 It is thus contended against whom? As against
that the GSIS investment in the Manila Hotel Corporation is a simple aliens over aliens?
business venture, hence, an act beyond the contemplation of section 10,
paragraph 2 of Article XII of the Constitution. MR. NOLLEDO. Madam
President, I think that is
The submission is unimpressive. The GSIS is not a pure private understood. We use the
corporation. It is essentially a public corporation created by Congress and word "QUALIFIED"
granted an original charter to serve a public purpose. It is subject to the because the existing laws
jurisdictions of the Civil Service Commission 37 and the Commission on or the prospective laws
Audit. 38 As state-owned and controlled corporation, it is skin-bound to will always lay down
adhere to the policies spelled out in the general welfare of the people. conditions under which
One of these policies is the Filipino First policy which the people elevated business map be done, for
as a constitutional command. example, qualifications on
capital, qualifications on
The fourth issue demands that we look at the content of phrase the setting up of other
"qualified Filipinos" and their "preferential right." The Constitution financial structures, et
desisted from defining their contents. This is as it ought to be for a cetera.
Constitution only lays down flexible policies and principles which can bent
to meet today's manifest needs and tomorrow's unmanifested demands. MR. RODRIGO. It is just a
Only a constitution strung with elasticity can grow as a living constitution. matter of style.

Thus, during the deliberations in the Constitutional Commission, MR. NOLLEDO Yes.
Commissioner Nolledo to define the phrase brushed aside a suggestion to
define the phrase "qualified Filipinos." He explained that present and MR. RODRIGO. If we say,
prospective "laws" will take care of the problem of its interpretation, viz: "PREFERENCE TO
QUALIFIED FILIPINOS," it
xxx xxx xxx can be understood as
giving preference to
THE PRESIDENT. What is qualified Filipinos as
the suggestion of against Filipinos who are
Commissioner Rodrigo? Is not qualified.
it to remove the word
"QUALIFIED?" MR. NOLLEDO. Madam
President, that was the
MR. RODRIGO. No, no, but intention of the
say definitely "TO proponents. The
QUALIFIED FILIPINOS" as committee has accepted
the amendment.
428
 xxx xxx xxx
As previously discussed, the constitutional command to enforce
the Filipino First policy is addressed to the State and not to
Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which
include applicable rules and regulations adopted by agencies and
instrumentalities of the State in the exercise of their rule-making
power. In the case at bar, the bidding rules and regulations set
forth the standards to measure the qualifications of bidders
Filipinos and foreigners alike. It is not seriously disputed that
petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which
GSIS should have accorded petitioner, a qualified Filipino, over Renong
Berhad, a foreigner, in the purchase of the controlling shares of the
Manila Hotel. Petitioner claims that after losing the bid, this right of
preference gives it a second chance to match the highest bid of Renong
Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind
from the premise that the second paragraph of section 10, Article XII of
the Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for it
gives preference to Filipinos. It is not, however, anti-alien per se for it
does not absolutely bar aliens in the grant of rights, privileges and
concessions covering the national economy and patrimony. Indeed, in the
absence of qualified Filipinos, the State is not prohibited from granting
these rights, privileges and concessions to foreigners if the act will
promote the weal of the nation.
In implementing the policy articulated in section 10, Article XII of the
Constitution, the stellar task of our State policy-makers is to maintain a
creative tension between two desiderata first, the need to develop our
economy and patrimony with the help of foreigners if necessary, and,
second, the need to keep our economy controlled by Filipinos. Rightfully,
the framers of the Constitution did not define the degree of the right of
preference to be given to qualified Filipinos. They knew that for the right
to serve the general welfare, it must have a malleable content that can be
adjusted by our policy-makers to meet the changing needs of our people.
In fine, the right of preference of qualified Filipinos is to be determined by
degree as time dictates and circumstances warrant. The lesser the need
for alien assistance, the greater the degree of the right of preference can
be given to Filipinos and vice verse.
Again, it should be stressed that the right and the duty to determine the
degree of this privilege at any given time is addressed to the entire State.
While under our constitutional scheme, the right primarily belongs to
Congress as the lawmaking department of our government, other
branches of government, and all their agencies and instrumentalities,
share the power to enforce this state policy. Within the limits of their
authority, they can act or promulgate rules and regulations defining the
degree of this right of preference in cases where they have to make
grants involving the national economy and judicial duty. On the other
hand, our duty is to strike down acts of the state that violate the policy.
To date, Congress has not enacted a law defining the degree of the
preferential right. Consequently, we must turn to the rules and
regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a
qualified Filipino in the subject sale. A tearless look at the rules and
regulations will show that they are silent on the degree of preferential
right to be accorded qualified Filipino bidder. Despite their silence,
however, they cannot be read to mean that they do not grant any degree
of preference to petitioner for paragraph 2, section 10, Article XII of the
Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them
from unconstitutionality, I submit that the right of preference of
petitioner arises only if it tied the bid of Benong Berhad. In that instance,
all things stand equal, and bidder, as a qualified Pilipino bidder, should be
preferred.
It is with deep regret that I cannot subscribe to the view that petitioner
has a right to match the bid of Renong Berhad. Petitioner's submission
must be supported by the rules but even if we examine the rules inside-
out .thousand times, they can not justify the claimed right. Under the
rules, the right to match the highest bid arises only "if for any reason, the
429
highest bidder cannot be awarded block of shares . . ." No reason has
arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest
bid. It was declared as the highest bidder by the GSIS and the rules say
this decision is final. It deserves the award as a matter of right for the
rules clearly did not give to the petitioner as a qualified Filipino privilege
to match the higher bid of a foreigner. What the rules did not grant,
petitioner cannot demand. Our symphaties may be with petitioner but
the court has no power to extend the latitude and longtitude of the right
of preference as defined by the rules. The parameters of the right of
preference depend on galaxy of facts and factors whose determination
belongs to the province of the policy-making branches and agencies of
the State. We are duty-bound to respect that determination even if we
differ with the wisdom of their judgment. The right they grant may be
little but we must uphold the grant for as long as the right of preference
is not denied. It is only when a State action amounts to a denial of the
right that the Court can come in and strike down the denial as
unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid
of Renong Berhad. Petitioner was aware of the rules and regulations of
the bidding. It knew that the rules and regulations do not provide that a
qualified Filipino bidder can match the winning bid submitting an inferior
bid. It knew that the bid was open to foreigners and that foreigners
qualified even during the first bidding. Petitioner cannot be allowed to
repudiate the rules which it agreed to respect. It cannot be allowed to
obey the rules when it wins and disregard them when it loses. If
sustained, petitioners' stance will wreak havoc on he essence of bidding.
Our laws, rules and regulations require highest bidding to raise as much
funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by
Filipinos and foreigners participating in a bidding contest and the rules
are carefully written to attain this objective. Among others, bidders are
prequalified to insure their financial capability. The bidding is secret and
the bids are sealed to prevent collusion among the parties. This objective
will be undermined if we grant petitioner that privilege to know the
winning bid and a chance to match it. For plainly, a second chance to bid
will encourage a bidder not to strive to give the highest bid in the first
bidding.
We support the Filipino First policy without any reservation. The visionary
nationalist Don Claro M. Recto has warned us that the greatest tragedy
that can befall a Filipino is to be an alien in his own land. The Constitution
has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we
wrong an alien. Our policy makers can write laws and rules giving favored
treatment to the Filipino but we are not free to be unfair to a foreigner
after writing the laws and the rules. After the laws are written, they must
be obeyed as written, by Filipinos and foreigners alike. The equal
protection clause of the Constitution protects all against unfairness. We
can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.
PANGANIBAN, J., dissenting:
I regret I cannot join the majority. To the incisive Dissenting Opinion of
Mr. Justice Reynato S. Puno, may I just add
1. The majority contends the Constitution should be interpreted to mean
that, after a bidding process is concluded, the losing Filipino bidder
should be given the right to equal the highest foreign bid, and thus to
win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in
the grant of rights . . . covering the national economy and patrimony, the
State shall give preference to qualified Filipinos." The majority concedes
that there is no law defining the extent or degree of such preference.
Specifically, no statute empowers a losing Filipino bidder to increase his bid
and equal that of the winning foreigner. In the absence of such
430
empowering law, the majority's strained interpretation, I respectfully
submit constitutes unadulterated judicial legislation, which makes bidding
a ridiculous sham where no Filipino can lose and where no foreigner can
win. Only in the Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-
sighted and, viewed properly, gravely prejudicial to long-term Filipino
interest. It encourages other countries in the guise of reverse comity
or worse, unabashed retaliation to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and
defeat the higher bids of Filipino enterprises solely, while on the other
hand, allowing similar bids of other foreigners to remain unchallenged by
their nationals. The majority's thesis will thus marginalize Filipinos as
pariahs in the global marketplace with absolute no chance of winning any
bidding outside our country. Even authoritarian regimes and hermit
kingdoms have long ago found out unfairness, greed and isolation are
self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont
want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino
First" policy of the Constitution, the constitutional preference for the
"qualified Filipinos" may be allowed only where all the bids are equal. In
this manner, we put the Filipino ahead without self-destructing him and
without being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only
when the scores are tied. But not when the ballgame is over and the
foreigner clearly posted the highest score.
Footnotes
1 See Sec. 10, par. 2, Art. XII, 1987 Constitution
2 Par I. Introduction and Highlights; Guidelines and
Procedures: Second Prequailifications and Public Bidding of
the MHC Privatization; Annex "A," Consolidated Reply to
Comments of Respondents; Rollo, p. 142.
3 Par. V. Guidelines for the Public Bidding, id., pp. 153-154.
4 Annex "A," Petition for Prohibition and Mandamus with
Temporary Restraining Order; Rollo, pp. 13-14.
5 Annex "B," Petition for Prohibition and Mandamus with
Temporary Restraining Order; id., p. 15.
6 Petition for Prohibition and Mandamus with Temporary
Restraining Order, pp. 5-6; id., pp. 6-7.
7 Consolidated Reply to Comments of Respondents, p. 17;
id., p. 133.
8 Par. V.J. 1, Guidelines for Public Bidding, Guidelines and
Procedures: second Prequalifications and Public Bidding of
the MHC Privatization, Annex "A," Consolidated Reply to
Comments of Respondents; id., p. 154.
9 Respondents' Joint Comment with Urgent Motion to
Lift Temporary Restraining Order, p. 9; Rollo, p. 44.
10 Marbury v. Madison, 5, U.S. 138 (1803).
11 Am Jur. 606.
12 16 Am Jur. 2d 281.
13 Id., p. 282.
14 See Note 12.
15 Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10.
431
16 Record of the Constitutional Commission, Vol. 3, 22
August 1986, p. 608.
17 16 Am Jur 2d 283-284.
18 Sec. 10, first par., reads: The Congress shall, upon
recommendation of the economic and planning agency,
when the national interest dictates, reserve to citizens of
the Philippines or to corporations or associations at least
sixty per centum of whose capital is owned by such
citizens, or such higher percentage as Congress may
prescribe, certain areas of investments. The Congress
shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly
owned by Filipinos.
Sec. 10, third par., reads: The State shall regulate and
exercise authority over foreign investments within its
national jurisdiction and in accordance with its national
goals and priorities.
19 State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 SW2d
319.
20 G.R. No. 91649, 14 May 1991, 197 SCRA 52.
21 Sec. 11, Art. II (Declaration of Principles and State
Policies), provides that [t]he State values the dignity of
every human person and guarantees full respect for
human rights.
22 Sec. 12, Art. II, provides that [t]he State recognizes the
sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall
equally protect the life of the mother and the life of the
unborn from conception. The natural and primary right
and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall
receive the support of the government.
23 Sec. 13, Art. II, provides that [t]he State recognizes the
vital role of the youth in nation-building and shall promote
and protect their physical, moral, spiritual, intellectual,
and social well-being. It shall inculcate in the youth
patriotism and nationalism, and encourage their
involvement in public and civic affairs.
24 Sec. 1, Art. XIII (Social Justice and Human Rights),
provides that [t]he Congress shall give highest priority to
the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social,
economic and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political
power for the common good.
To this end, the State shall regulate the acquisition,
ownership, use, and disposition of property and its
increments.
Sec. 2, Art. XIII, provides that [t]he promotion of social
justice shall include the commitment to create economic
opportunities based on freedom of initiative and self-
reliance.
25 Sec. 2, Art. XIV (Education, Science and Technology,
Arts, Culture, and Sports), provides that [t]he State shall:
(1) Establish, maintain, and support a complete, adequate,
and integrated system of education relevant to the needs
of the people and society;
(2) Establish and maintain a system of free public
education in the elementary and high school levels.
Without limiting the natural right of parents to rear their
432
children, elementary education is compulsory for all
children of school age;
(3) Establish and maintain a system of scholarship grants,
student loan programs, subsidies, and other incentives
which shall be available to deserving students in both
public and private schools, especially to the
underprivileged.
(4) Encourage non-formal, informal, and indegenous
learning, independent, and out-of-school study programs
particularly those that respond to community needs; and
(5) Provide adult citizens, the disabled, and out-of-school
youth with training in civics, vocational efficiency, and
other skills.
26 G.R. 115455, 25 August 1994, 235 SCRA 630.
27 See Note 25.
28 Sec. 1 Art. XIV, provides that [t]he State shall protect
and promote the right of all citizens to quality education
at all levels of education and shall take appropriate steps
to make such education accessible to all.
29 G.R. No. 118910, 17 July 1995.
30 Sec. 5 Art. II (Declaration of Principles and State
Policies), provides that [t]he maintenance of peace and
order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of
democracy.
31 See Note 23.
32 See Note 24.
33 Sec. 17, Art II, provides that [t]he State shall give
priority to education, science and technology, arts,
culture, and sports to foster patriotism and nationalism,
accelerate social progress, and promote total human
liberation and development.
34 Nolledo, Jose N., The New Constitution of the
Philippines Annotated, 1990 ed., p. 72.
35 Webster's Third New International Dictionary, 1986 ed.,
p. 1656.
36 The guest list of the Manila Hotel includes Gen.
Douglas MacArthur, the Duke of Windsor, President
Richard Nixon of U.S.A., Emperor Akihito of Japan,
President Dwight Eisenhower of U.S.A, President Nguyen
Van Thieu of Vietnam, President Park Chung Hee of Korea,
Prime Minister Richard Holt of Australia, Prime Minister
Keith Holyoake of New Zealand, President Lyndon
Johnson of U.S.A., President Jose Lopez Portillo of
Mexico, Princess Margaret of England, Prime Minister
Malcolm Fraser of Australia, Prime Minister Yasuhiro
Nakasone of Japan, Prime Minister Pierre Elliot Trudeau of
Canada, President Raul Alfonsin of Argentina, President
Felipe Gonzalez of Spain, Prime Minister Noboru
Takeshita of Japan, Prime Minister Hussain Muhammad
Ershad of Bangladesh, Prime Minister Bob Hawke of
Australia, Prime Minister Yasuhiro Nakasone of Japan,
Premier Li Peng of China, Sultan Hassanal Bolkiah of
Brunei, President Ramaswani Venkataraman of India,
Prime Minister Go Chok Tong of Singapore, Prime Minister
Enrique Silva Cimma of Chile, Princess Chulaborn and
Mahacharri Sirindhorn of Thailand, Prime Minister
Tomiichi Murayama of Japan, Sultan Azlan Shah and Raja
Permaisuri Agong of Malaysia, President Kim President
Young Sam of Korea, Princess Infanta Elena of Spain,
433
President William Clinton of U.S.A., Prime Minister
Mahathir Mohamad of Malaysia, King Juan Carlos I and
Queen Sofia of Spain, President Carlos Saul Menem of
Argentina, Prime Ministers Chatichai Choonvan and Prem
Tinsulanonda of Thailand, Prime Minister Benazir Bhutto
of Pakistan, President Vaclav Havel of Czech Republic,
Gen. Norman Schwarzcopf of U.S.A, President Ernesto
Perez Balladares of Panama, Prime Minister Adolfas
Slezevicius of Lithuania, President Akbar Hashemi
Rafsanjani of Iran, President Frei Ruiz Tagle of Chile,
President Le Duc Anh of Vietnam, and Prime Minister
Julius Chan of Papua New Guinea, see Memorandum for
Petitioner, pp. 16-19.
37 Authored by Beth Day Romulo.
38 See Note 9, pp. 15-16; Rollo, pp. 50-51.
39 Record of the Constitutional Commission. Vol. 3, 22
August 1986. p. 607.
40 Id., p. 612.
41 Id., p. 616.
42 Id., p. 606.
43 Nolledo, J.N., The New Constitution of the Philippines
Annotated, 1990 ed., pp. 930-931.
44 Bidders were required to have at least one of the these
qualifications to be able to participate in the bidding
process; see Note 2.
45 Memorandum of Fr. Joaquin G. Bernas, S.J., p. 6.
46 Id., pp. 3-4.
47 See Note 8.
48 Keynote Address at the ASEAN Regional Symposium of
Enforcement of Industrial Property Rights held 23
October 1995 at New World Hotel, Makati City.
49 Speech of Senior Associate Justice Teodoro R. Padilla
at the Induction of Officers and Directors of the
PHILCONSA for 1996 held 16 January 1996 at the Sky-Top,
Hotel Intercontinental, Makati City.
50 Memorandum of Authorities submitted by former
Chief Justice Enrique M. Fernando, p. 5.
51 8 March 1996 issue of Philippine Daily Inquirer, p. B13.
PADILLA, J., concurring:
1 Article XII, Section 10, par. 2, 1987 Constitution.
2 Padilla, The 1987 Constitution of the Republic of the
Philippines, Volume III, p. 89.
3 Sinco, Philippine Political Law, 11th ed, p. 112.
4 Nolledo, The New Constitution of the Philippines,
Announced, 1990 ed., p. 72.
5 Memorandum for Petitioner, p. 1.
6 Laurel, Proceedings of the Philippine Constitutional
Convention (1934-1935), p. 507.
7 Id., p. 562.
VITUG, J., concurring:
434
1 Second par. Section 10, Art. XII, 1987 Constitution. 12 Petitioner passed the criteria set forth in the
GUIDELINES, Part IV, par. F(4), of the GSIS, relating to the
MENDOZA, J., concurring: following:

1 Art. XII, 10, second paragraph. a. Business management expertise, tract

record, and experience
2 GUIDELINES AND PROCEDURES: SECOND
PREQUALIFICATION AND PUBLIC BIDDING OF THE MHC b. Financial capability
PRIVATIZATION (hereafter referred to as GUIDELINES),
Part. V, par. H(4).. c. Feasibility and acceptability of the
proposed strategic plan for the Manila
3 Id. Hotel.

4 83 Phil. 242 (1949). 13 GUIDELINES, Part V, par. (1)(3), in relation to Part. I.

5 R.A. No. 37, 1. 14 Id., Part V, par. V (1).

6 87 Phil. 343 (1950). PUNO, J., dissenting:

7 104 Phil. 302 (1958).
8 Id, at 309.
9 For an excellent analysis of American cases on reverse
discrimination in these areas, see GERALD GUNTHER,
CONSTITUTIONAL LAW 780-819 (1991).
10 Art. II, 19: "The State shall develop a self-reliant and
independent national economy effectively controlled by
Filipinos." (Emphasis added)
11 See Villegas v. Hiu Chiung Tsai Pao Ho, 86 SCRA 270
(1978) (invalidating an ordinance imposing a flat fee of
P500 on aliens for the privilege of earning a livelihood).
1 Introduction and Highlights, Guidelines and Procedures:
Second Prequalification and Public Bidding of the MHC
Privatization, Annex "A" to Petitioner's Consolidated
Reply to Comments of Respondents, Rollo, p. 142.
2 The four bidders who previously prequalified for the
first bidding, namely, ITT Sheraton, Marriot International,
Inc., Renaissance Hotel International, Inc., and the
consortium of RCBC and the Ritz Carlton, were deemed
prequalified for the second bidding.
3 Annex "A" to the Consolidated Reply to Comments of
Respondents, Rollo, pp. 140-155.
4 Former Chief Justice Enrique Fernando and
Commissioner Joaquin Bernas were invited by the Court
as amicus curiae to shed light on its meaning.

435
5 Lopez v. de los Reyes, 55 Phil. 170, 190 [1930].
6 16 Am Jur 2d, Constitutional Law, Sec. 139 p. 510 [1979
ed. ]; 6 R.C.L. Sec. 52 p. 57 [1915]; see also Willis v. St. Paul
Sanitation Co. 48 Minn. 140, 50 N.W. 1110, 31 A.J.R. 626, 16
L.R.A. 281 [1892]; State ex rel. Schneider v. Kennedy, 587
P. 2d 844, 225 Kan [1978].
7 Willis v. St. Paul Sanitation, supra, at 1110-1111; see also
Cooley, A Treatise on Constitutional Limitations 167, vol. 1
[1927].
8 16 C.J.S., Constitutional Law, Sec. 48, p. 100.
9 Cooley, supra, at 171; 6 R.C.L. Sec. 53, pp. 57-58; Brice v.
McDow, 116 S.C. 324, 108 S.E. 84, 87 [1921]; see also
Gonzales, Philippine Constitutional Law p. 26 [1969].
10 16 C.J.S., Constitutional Law, Sec. 48, p. 101.
11 Way v. Barney, 116 Minn. 285, 133 N.W. 801, 804 38
L.R.A. (N.S.) 648, Ann. Cas. 1913 A, 719 [1911]; Brice v.
McDow, supra, at 87; Morgan v. Board of Supervisors, 67
Ariz. 133, 192 P. 2d 236, 241 [1948]; Gonzales, supra..
12 Ninth Decennial Digest Part I, Constitutional Law, (Key
No. 28), p. 1638.
13 Article III, Section 2; see Webb v. de Leon, 247 SCRA 652
[1995]; People v. Saycon, 236 SCRA 325 (1994]; Allado v.
Diokno, 232 SCRA 192 (1994]; Burgos v. Chief of Staff, 133
SCRA 800 [1984]; Yee Sue Kuy v. Almeda, 70 Phil. 141
[1940]; Pasion Vda. de Garcia v. Locsin, 65 Phil. 689 [1938];
and a host of other cases.
14 Article III, Section 12, pars. 1 to 3; People v. Alicando, 251
SCRA 293 [1995]; People v. Bandula 232 SCRA 566 [1994];
People v. Nito 228 SCRA 442 [1993]; People v. Duero, 104
SCRA 379 [1981]; People v. Galit, 135 SCRA 465 [1985]; and
a host of other cases.
15 Article III, Section 14; People v. Digno, 250 SCRA 237
[1995]; People v. Godoy, 250 SCRA 676 [1995]; People v.
Colcol 219 SCRA [1993]; Borja v. Mendoza, 77 SCRA 422
[1977]; People v. Dramayo, 42 SCRA 59 [1971]; and a host
of other cases.
16 Galman v. Pamaran, 138 SCRA 274 [1985]; Chavez v.
Court of Appeals 24 SCRA 663 [1968]; People v. Otadura,
86 Phil. 244 [1950]; Bermudez v. Castillo, 64 Phil, 485
[1937]; and a host of other cases.
17 Harley v. Schuylkill County, 476 F. Supp, 191, 195-196
[1979]; Erdman v. Mitchell, 207 Pa. St. 79, 56 Atl. 327, 99
A.S.R. 783 63 L.R.A. 534 [1903]; see Ninth Decennial Digest
Part I, Constitutional Law, (Key No. 28), pp. 1638-1639.
18 City of Chicago v. George F. Harding Collection, 217 N.E.
2d 381, 383, 70 Ill. App. 2d 254 [1966]; People v. Buellton
Dev. Co., 136 P. 2d 793, 796, 58 Cal. App. 2d 178 [1943];
Bordy v. State, 7 N.W. 2d 632, 635, 142 Neb. 714 [1943];
Cohen v. City of Chicago, 36 N.E. 2d 220, 224, 377 Ill 221
[1941].
19 16 Am Jur 2d, Constitutional Law, Sec. 143, p. 514; 16
C.J.S. Constitutional Law, Sec. 48, p. 100; 6 R.C.L. Sec. 54,
p. 59; see also State ex rel. Noe v. Knop La. App. 190 So.
135, 142 [1939]; State ex rel. Walker v. Board of Comm'rs.
for Educational Lands and Funds, 3 N.W. 2d 196, 200, 141
Neb. 172 [1942]; Maddox v. Hunt, 83 P. 2d 553, 556, 83 Okl.
465 [1938].
20 Article II, Sections 11, 12 and 13 (Basco v. Phil.
Amusements and Gaming Corporation, 197 SCRA 52, 68
436
[1991]); Sections 5, 12, 13 and 17 (Kilosbayan, Inc. v.
Morato, 246 SCRA 540, 564 [1995]).
21 Article XIII, Section 13 (Basco, supra).
22 Article XIV, Section 2 (Basco, supra).
23 Kilosbayan v. Morato, supra, at 564.
24 Basco v. Phil. Amusements and Gaming Corporation,
supra, at 68.
25 Congress had previously passed the Retail Trade Act
(R.A. 1180); the Private Security Agency Act (R.A. 5487;
the law on engaging in the rice and corn industry (R.A.
3018, P.D. 194), etc.
26 Or such higher percentage as Congress may prescribe.
27 Article XIV, section 3 of the 1973 Constitution reads:
"Sec. 3. The Batasang Pambansa shall, upon
recommendation of the National Economic and
Development Authority, reserve to citizens of the
Philippines or to corporations or associations wholly
owned by such citizens, certain traditional areas of
investments when the national interest so dictates,"
28 101 Phil. 1155 [1957].
29 See Bernas, The Constitution of the Republic of the
Philippines 450, vol. II [1988]. The Lao Ichong case upheld
the Filipinization of the retail trade and implied that
particular areas of business may be Filipinized without
doing violence to the equal protection clause of the
Constitution.
30 Nolledo The New Constitution of the Philippines,
Annotated, 1990 ed., p. 72. The word "patrimony" first
appeared in the preamble of the 1935 Constitution and
was understood to cover everything that belongs to the
Filipino people, the tangible and the material as well as
the intangible and the spiritual assets and possessions of
the nation (Sinco, Philippine Political Law, Principles and
Concepts [1962 ed.], p. 112; Speech of Delegate of
Conrado Benitez defending the draft preamble of the
1935 Constitution in Laurel, Proceedings of the
Constitutional Convention, vol. III, p. 325 [1966]).
31 Commissioned by the Manila Hotel Corporation for the
Diamond Jubilee celebration of the Hotel in 1987; see The
Manila Hotel: The Heart and Memory of a City.any
32 Section 7 of R.A. 4846 provides:
Sec. 7. In the designation of a particular cultural property
as a .national cultural treasure," the following procedure
shall be observed:
(a) Before the actual designation, the owner, if the
property is privately owned, shall be notified at least
fifteen days prior to the intended designation, and he
shall be invited to attend the deliberation and given a
chance to be heard. Failure on the part of the owner to
attend the deliberation shall not bar the panel to render
its decision. Decision shall be given by the panel within a
week after its deliberation. In the event that the owner
desires to seek reconsideration of the designation made
by the panel, he may do so within thirty days from the
date that the decision has been rendered. If no request
for reconsideration is filed after this period, the
designation is then considered final and executory. Any
request for reconsideration filed within thirty days and
subsequently again denied by the panel, may be further
appealed to another panel chairmanned by the Secretary
437
of Education with two experts as members appointed by
the Secretary of Education. Their decision shall final and
binding.
(b) Within each kind or class of objects, only the rare and
unique objects may be designated as "National Cultural
Treasures." The remainder, if any shall be treated as
cultural property.
specifying areas of economic activity where foreign
participation is limited or prohibited. Areas of economic
activity not included in the Negative List are open to
foreign participation up to one hundred per cent (Sees. 6
and 7). Foreigners now own and run a great number of
our five-star hotels.

xxx xxx xxx

33 P.D. 1146, Sec, 5; P.D, 1146, known as "The Revised

Government Service Insurance Act of 1977" amended
Commonwealth Act No. 186, the "Government Service
Insurance Act" of 1936.

34 Beronilla v. Government Service Insurance System, 36

SCRA 44, 53 [1970]; Social Security System Employees
Association v. Soriano, 7 SCRA 1016, 1023 [1963].

35 Id., secs. 28 and 29.

36 Id., Sec. 30.

37 Constitution, Article IX (B), section 2 (1).

38 Constitution, Article IX (D), section 2 (1).

39 It is meet to note that our laws do not debar foreigners

from engaging in the hotel business. Republic Act No.
7042, entitled the "Foreign Investments Act of 1991" was
enacted by Congress to "attract, promote and welcome . .
. foreign investments . . . in activities which significantly
contribute to national industrialization and socio-
economic development to the extent that foreign
investment is allowed by the Constitution and relevant
laws." The law contains a list, called the Negative List

438
 Republic of the Philippines On 20 December 1996, the Board adopted a new compensation and
SUPREME COURT benefit scheme which included a 10,000 year-end benefit granted to
Manila each contractual employee, regular permanent employee, and Board
member. In a memorandum4 dated 25 August 1997, Board Chairman
EN BANC Victoriano A. Basco (Chairman Basco) recommended to President Fidel V.
Ramos (President Ramos) the approval of the new compensation and
G.R. No. 178160 February 26, 2009 benefit scheme. In a memorandum5 dated 9 October 1997, President
Ramos approved the new compensation and benefit scheme.
BASES CONVERSION AND DEVELOPMENT AUTHORITY, Petitioner,
vs. In 1999, the BSP gave a 30,000 year-end benefit to its officials and
COMMISSION ON AUDIT, Respondent. employees. In 2000, the BSP increased the year-end benefit from
30,000 to 35,000. Pursuant to Section 10 of RA No. 7227 which states
DECISION that the compensation and benefit scheme of the BCDA shall be at least
equivalent to that of the BSP, the Board increased the year-end benefit of
CARPIO, J.: BCDA officials and employees from 10,000 to 30,000. Thus in 2000 and
2001, BCDA officials and employees received a 30,000 year-end benefit,
The Case and, on 1 October 2002, the Board passed Resolution No. 2002-10-1936
approving the release of a 30,000 year-end benefit for 2002.
This is a petition for certiorari1 with prayer for the issuance of a temporary
restraining order and a writ of preliminary injunction. The petition seeks Aside from the contractual employees, regular permanent employees,
to nullify Decision No. 2007-0202 dated 12 April 2007 of the Commission on and Board members, the full-time consultants of the BCDA also received
Audit (COA). the year-end benefit.

The Facts
On 13 March 1992, Congress approved Republic Act (RA) No. 72273
creating the Bases Conversion and Development Authority (BCDA).
Section 9 of RA No. 7227 states that the BCDA Board of Directors (Board)
shall exercise the powers and functions of the BCDA. Under Section 10,
the functions of the Board include the determination of the
organizational structure and the adoption of a compensation and benefit
scheme at least equivalent to that of the Bangko Sentral ng Pilipinas
(BSP). Accordingly, the Board determined the organizational structure of
the BCDA and adopted a compensation and benefit scheme for its
officials and employees.
On 20 February 2003, State Auditor IV Corazon V. Espao of the COA
issued Audit Observation Memorandum (AOM) No. 2003-0047 stating
that the grant of year-end benefit to Board members was contrary to
Department of Budget and Management (DBM) Circular Letter No. 2002-
2 dated 2 January 2002. In Notice of Disallowance (ND) No. 03-001-BCDA-
(02)8 dated 8 January 2004, Director IV Rogelio D. Tablang (Director
Tablang), COA, Legal and Adjudication Office-Corporate, disallowed the
grant of year-end benefit to the Board members and full-time
consultants. In Decision No. 2004-0139 dated 13 January 2004, Director
Tablang "concurred" with AOM No. 2003-004 and ND No. 03-001-BCDA-
(02).
In a letter10 dated 20 February 2004, BCDA President and Chief Executive
Officer Rufo Colayco requested the reconsideration of Decision No. 2004-
013. In a Resolution11 dated 22 June 2004, Director Tablang denied the
439
request. The BCDA filed a notice of appeal12 dated 8 September 2004 and
an appeal memorandum13 dated 23 December 2004 with the COA.
The COAs Ruling
In Decision No. 2007-020,14 the COA affirmed the disallowance of the year-
end benefit granted to the Board members and full-time consultants and
held that the presumption of good faith did not apply to them. The COA
stated that:
The granting of YEB x x x is not without x x x limitation. DBM Circular
Letter No. 2002-02 dated January 2, 2002 stating, viz:
"2.0 To clarify and address issues/requests concerning the same,
the following compensation policies are hereby reiterated:
2.1 PERA, ADCOM, YEB and retirement benefits, are personnel
benefits granted in addition to salaries. As fringe benefits, these
shall be paid only when the basic salary is also paid.
2.2 Members of the Board of Directors of agencies are not
salaried officials of the government. As non-salaried officials they
are not entitled to PERA, ADCOM, YEB and retirement benefits
unless expressly provided by law.
2.3 Department Secretaries, Undersecretaries and Assistant
Secretaries who serve as Ex-officio Members of the Board of
Directors are not entitled to any remuneration in line with the
Supreme Court ruling that their services in the Board are already
paid for and covered by the remuneration attached to their
office." (underscoring ours)
Clearly, as stated above, the members and ex-officio members of the
Board of Directors are not entitled to YEB, they being not salaried
officials of the government. The same goes with full time consultants
wherein no employer-employee relationships exist between them and
the BCDA. Thus, the whole amount paid to them totaling 342,000 is
properly disallowed in audit.
Moreover, the presumption of good faith may not apply to the members
and ex-officio members of the Board of Directors because despite the
earlier clarification on the matter by the DBM thru the issuance on
January 2, 2002 of DBM Circular Letter No. 2002-02, still, the BCDA Board
of Directors enacted Resolution No. 2002-10-93 on October 1, 2002
granting YEB to the BCDA personnel including themselves. Full time
consultants, being non-salaried personnel, are also not entitled to such
presumption since they knew from the very beginning that they are only
entitled to the amount stipulated in their contracts as compensation for
their services. Hence, they should be made to refund the disallowed
YEB.15 (Boldfacing in the original)
Hence, this petition.
The Courts Ruling
The Board members and full-time consultants of the BCDA are not
entitled to the year-end benefit.
First, the BCDA claims that the Board can grant the year-end benefit to its
members and full-time consultants because, under Section 10 of RA No.
7227, the functions of the Board include the adoption of a compensation
and benefit scheme.
The Court is not impressed. The Boards power to adopt a compensation
and benefit scheme is not unlimited. Section 9 of RA No. 7227 states that
Board members are entitled to a per diem:
Members of the Board shall receive a per diem of not more than Five
thousand pesos (5,000) for every board meeting: Provided, however,
That the per diem collected per month does not exceed the equivalent of
four (4) meetings: Provided, further, That the amount of per diem for
every board meeting may be increased by the President but such amount
440
shall not be increased within two (2) years after its last increase.
(Emphasis supplied)1awphi1
Section 9 specifies that Board members shall receive a per diem for every
board meeting; limits the amount of per diem to not more than 5,000;
and limits the total amount of per diem for one month to not more than
four meetings. In Magno v. Commission on Audit,16 Cabili v. Civil Service
Commission,17 De Jesus v. Civil Service Commission,18 Molen, Jr. v.
Commission on Audit,19 and Baybay Water District v. Commission on Audit,20
the Court held that the specification of compensation and limitation of
the amount of compensation in a statute indicate that Board members
are entitled only to the per diem authorized by law and no other. In
Baybay Water District, the Court held that:
By specifying the compensation which a director is entitled to receive and
by limiting the amount he/she is allowed to receive in a month, x x x the
law quite clearly indicates that directors x x x are authorized to receive
only the per diem authorized by law and no other compensation or
allowance in whatever form.21
Also, DBM Circular Letter No. 2002-2 states that, "Members of the Board
of Directors of agencies are not salaried officials of the government. As
non-salaried officials they are not entitled to PERA, ADCOM, YEB and
retirement benefits unless expressly provided by law." RA No. 7227 does
not state that the Board members are entitled to a year-end benefit.
With regard to the full-time consultants, DBM Circular Letter No. 2002-2
states that, "YEB and retirement benefits, are personnel benefits
granted in addition to salaries. As fringe benefits, these shall be paid
only when the basic salary is also paid." The full-time consultants are not
part of the BCDA personnel and are not paid the basic salary. The full-time
consultants consultancy contracts expressly state that there is no
employer-employee relationship between the BCDA and the consultants,
and that the BCDA shall pay the consultants a contract price. For
example, the consultancy contract22 of a certain Dr. Faith M. Reyes states:
SECTION 2. Contract Price. For and in consideration of the services to be
performed by the CONSULTANT (16 hours/week), BCDA shall pay her the
amount of TWENTY THOUSAND PESOS and 00/100 (20,000.00),
Philippine currency, per month.
xxxx
SECTION 4. Employee-Employer Relationship. It is understood that no
employee-employer relationship shall exist between BCDA and the
CONSULTANT.
SECTION 5. Period of Effectivity. This CONTRACT shall have an effectivity
period of one (1) year, from January 01, 2002 to December 31, 2002, unless
sooner terminated by BCDA in accordance with Section 6 below.
SECTION 6. Termination of Services. BCDA, in its sole discretion may opt
to terminate this CONTRACT when it sees that there is no more need for
the services contracted for. (Boldfacing in the original)
Since full-time consultants are not salaried employees of BCDA, they are
not entitled to the year-end benefit which is a "personnel benefit granted
in addition to salaries" and which is "paid only when the basic salary is
also paid."
Second, the BCDA claims that the Board members and full-time
consultants should be granted the year-end benefit because the granting
of year-end benefit is consistent with Sections 5 and 18, Article II of the
Constitution. Sections 5 and 18 state:
Section 5. The maintenance of peace and order, the protection of life,
liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all people of the blessings of democracy.
Section 18. The State affirms labor as a primary social economic force. It
shall protect the rights of workers and promote their welfare.
The Court is not impressed. Article II of the Constitution is entitled
Declaration of Principles and State Policies. By its very title, Article II is a
statement of general ideological principles and policies. It is not a source
441
of enforceable rights.23 In Tondo Medical Center Employees Association v.
Court of Appeals,24 the Court held that Sections 5 and 18, Article II of the
Constitution are not self-executing provisions. In that case, the Court
held that "Some of the constitutional provisions invoked in the present
case were taken from Article II of the Constitution specifically,
Sections 5 x x x and 18 the provisions of which the Court categorically
ruled to be non self-executing."
Third, the BCDA claims that the denial of year-end benefit to the Board
members and full-time consultants violates Section 1, Article III of the
Constitution.25 More specifically, the BCDA claims that there is no
substantial distinction between regular officials and employees on one
hand, and Board members and full-time consultants on the other. The
BCDA states that "there is here only a distinction, but no difference"
because both "have undeniably one common goal as humans, that is x x x
to keep body and soul together" or, "[d]ifferently put, both have
mouths to feed and stomachs to fill."
The Court is not impressed. Every presumption should be indulged in
favor of the constitutionality of RA No. 7227 and the burden of proof is
on the BCDA to show that there is a clear and unequivocal breach of the
Constitution.26 In Abakada Guro Party List v. Purisima,27 the Court held
that:
A law enacted by Congress enjoys the strong presumption of
constitutionality. To justify its nullification, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and unequivocal
one. To invalidate [a law] based on x x x baseless supposition is an affront
to the wisdom not only of the legislature that passed it but also of the
executive which approved it.
The BCDA failed to show that RA No. 7227 unreasonably singled out
Board members and full-time consultants in the grant of the year-end
benefit. It did not show any clear and unequivocal breach of the
Constitution. The claim that there is no difference between regular
officials and employees, and Board members and full-time consultants
because both groups "have mouths to feed and stomachs to fill" is
fatuous. Surely, persons are not automatically similarly situated thus,
automatically deserving of equal protection of the laws just because
they both "have mouths to feed and stomachs to fill." Otherwise, the
existence of a substantial distinction would become forever highly
improbable.
Fourth, the BCDA claims that the Board can grant the year-end benefit to
its members and the full-time consultants because RA No. 7227 does not
expressly prohibit it from doing so.
The Court is not impressed. A careful reading of Section 9 of RA No. 7227
reveals that the Board is prohibited from granting its members other
benefits. Section 9 states:
Members of the Board shall receive a per diem of not more than Five
thousand pesos (5,000) for every board meeting: Provided, however,
That the per diem collected per month does not exceed the equivalent of
four (4) meetings: Provided, further, That the amount of per diem for
every board meeting may be increased by the President but such amount
shall not be increased within two (2) years after its last increase.
(Emphasis supplied)
Section 9 specifies that Board members shall receive a per diem for every
board meeting; limits the amount of per diem to not more than 5,000;
limits the total amount of per diem for one month to not more than four
meetings; and does not state that Board members may receive other
benefits. In Magno,28 Cabili,29 De Jesus,30 Molen, Jr.,31 and Baybay Water
District,32 the Court held that the specification of compensation and
limitation of the amount of compensation in a statute indicate that
Board members are entitled only to the per diem authorized by law and
no other.
The specification that Board members shall receive a per diem of not
more than 5,000 for every meeting and the omission of a provision
allowing Board members to receive other benefits lead the Court to the
inference that Congress intended to limit the compensation of Board
members to the per diem authorized by law and no other. Expressio unius
est exclusio alterius. Had Congress intended to allow the Board members
to receive other benefits, it would have expressly stated so.33 For
442
example, Congress intention to allow Board members to receive other
benefits besides the per diem authorized by law is expressly stated in
Section 1 of RA No. 9286:34
SECTION 1. Section 13 of Presidential Decree No. 198, as amended, is
hereby amended to read as follows:
"SEC. 13. Compensation. Each director shall receive per diem to be
determined by the Board, for each meeting of the Board actually
attended by him, but no director shall receive per diems in any given
month in excess of the equivalent of the total per diem of four meetings
in any given month.
Any per diem in excess of One hundred fifty pesos (150.00) shall be
subject to the approval of the Administration. In addition thereto, each
director shall receive allowances and benefits as the Board may
prescribe subject to the approval of the Administration." (Emphasis
supplied)
The Court cannot, in the guise of interpretation, enlarge the scope of a
statute or insert into a statute what Congress omitted, whether
intentionally or unintentionally.35
When a statute is susceptible of two interpretations, the Court must
"adopt the one in consonance with the presumed intention of the
legislature to give its enactments the most reasonable and beneficial
construction, the one that will render them operative and effective."36
The Court always presumes that Congress intended to enact sensible
statutes.37 If the Court were to rule that the Board could grant the year-
end benefit to its members, Section 9 of RA No. 7227 would become
inoperative and ineffective the specification that Board members shall
receive a per diem of not more than 5,000 for every meeting; the
specification that the per diem received per month shall not exceed the
equivalent of four meetings; the vesting of the power to increase the
amount of per diem in the President; and the limitation that the amount
of per diem shall not be increased within two years from its last increase
would all become useless because the Board could always grant its
members other benefits.
With regard to the full-time consultants, DBM Circular Letter No. 2002-2
states that, "YEB and retirement benefits, are personnel benefits
granted in addition to salaries. As fringe benefits, these shall be paid
only when the basic salary is also paid." The full-time consultants are not
part of the BCDA personnel and are not paid the basic salary. The full-time
consultants consultancy contracts expressly state that there is no
employer-employee relationship between BCDA and the consultants and
that BCDA shall pay the consultants a contract price. Since full-time
consultants are not salaried employees of the BCDA, they are not entitled
to the year-end benefit which is a "personnel benefit granted in addition
to salaries" and which is "paid only when the basic salary is also paid."
Fifth, the BCDA claims that the Board members and full-time consultants
are entitled to the year-end benefit because (1) President Ramos
approved the granting of the benefit to the Board members, and (2) they
have been receiving it since 1997.
The Court is not impressed. The State is not estopped from correcting a
public officers erroneous application of a statute, and an unlawful
practice, no matter how long, cannot give rise to any vested right.38
The Court, however, notes that the Board members and full-time
consultants received the year-end benefit in good faith. The Board
members relied on (1) Section 10 of RA No. 7227 which authorized the
Board to adopt a compensation and benefit scheme; (2) the fact that RA
No. 7227 does not expressly prohibit Board members from receiving
benefits other than the per diem authorized by law; and (3) President
Ramos approval of the new compensation and benefit scheme which
included the granting of a year-end benefit to each contractual employee,
regular permanent employee, and Board member. The full-time
consultants relied on Section 10 of RA No. 7227 which authorized the
Board to adopt a compensation and benefit scheme. There is no proof
that the Board members and full-time consultants knew that their receipt
of the year-end benefit was unlawful. In keeping with Magno,39 De Jesus,40
Molen, Jr.,41 and Kapisanan ng mga Manggagawa sa Government Service
Insurance System (KMG) v. Commission on Audit,42 the Board members and
full-time consultants are not required to refund the year-end benefits
they have already received.
443
WHEREFORE, the petition is PARTIALLY GRANTED. Commission on Audit
Decision No. 2007-020 dated 12 April 2007 is AFFIRMED with the TERESITA J. LEONARDO-DE
DIOSDADO M. PERALTA
MODIFICATION that the Board members and full-time consultants of the CASTRO
Associate Justice
Bases Conversion and Development Authority are not required to refund Associate Justice
the year-end benefits they have already received.
CERTIFICATION
SO ORDERED.
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
ANTONIO T. CARPIO conclusions in the above Decision had been reached in consultation
Associate Justice before the case was assigned to the writer of the opinion of the Court.

WE CONCUR: REYNATO S. PUNO

Chief Justice
REYNATO S. PUNO
Chief Justice

(On official leave) Footnotes

CONSUELO YNARES-
LEONARDO A. QUISUMBING SANTIAGO* * On official leave per Special Order No. 563.
Associate Justice Associate Justice
* On official leave per Special Order No. 571.
MA. ALICIA AUSTRIA- 1
RENATO C. CORONA Under Rule 65 of the Rules of Court.
MARTINEZ
Associate Justice
Associate Justice 2
Rollo, pp. 37-44.

(On official leave) 3

Otherwise known as the "Bases Conversion and Development
CONCHITA CARPIO MORALES DANTE O. TINGA* Act of 1992."
Associate Justice Associate Justice
4
Rollo, pp. 45-51.
MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice 5
Id. at 52.

6
ANTONIO EDUARDO B. Id. at 67.
ARTURO D. BRION
NACHURA
Associate Justice
Associate Justice 7
Id. at 73.

444
8 25
Id. at 78-81. Section 1, Article III of the Constitution states that, "No person
shall be x x x denied the equal protection of the laws."
9
Id. at 89-91.
26
British American Tobacco v. Camacho, G.R. No. 163583, 20
10 August 2008; Central Bank Employees Association, Inc. v. Bangko
Id. at 92-93.
Sentral ng Pilipinas, 487 Phil. 531, 562 (2004).
11
Id. at 94-98.
27
G.R. No. 166715, 14 August 2008.
12
Id. at 99.
28
Supra note 16.
13
Id. at 100-110.
29
Supra note 17.
14
Id. at 37-44.
30
Supra note 18.
15
Id. at 42-43.
31
Supra note 19.
16
G.R. No. 149941, 28 August 2007, 531 SCRA 339, 349.
32
Supra note 20.
17
G.R. No. 156503, 22 June 2006, 492 SCRA 252, 260.
33
Romualdez v. Marcelo, G.R. Nos. 165510-33, 28 July 2006, 497
18
G.R. No. 156559, 30 September 2005, 471 SCRA 624, 627. SCRA 89, 107-109; Republic of the Philippines v. Honorable Estenzo,
188 Phil. 61, 65-66 (1980).
19
G.R. No. 150222, 18 March 2005, 453 SCRA 769, 778.
34
An Act Further Amending Presidential Decree No. 198,
20
425 Phil. 326 (2002). Otherwise Known As "The Provincial Water Utilities Act of 1973,"
as amended.
21
Id. at 337.
35
Canet v. Mayor Decena, 465 Phil. 325, 332-333 (2004).
22
Rollo, pp. 158-159.
36
Sesbreo v. Central Board of Assessment Appeals, 337 Phil. 89,
23
Pamatong v. Commission on Elections, G.R. No. 161872, 13 April 103-104 (1997).
2004, 427 SCRA 96, 100-101; Taada v. Angara, 338 Phil. 546, 580-
37
583 (1997). In re Guaria, 24 Phil. 37, 47 (1913).

38
24
G.R. No. 167324, 17 July 2007, 527 SCRA 746, 764-765. Veterans Federation of the Philippines v. Reyes, G.R. No. 155027,
28 February 2006, 483 SCRA 526, 556; Kapisanan ng mga
Manggagawa sa Government Service Insurance System (KMG) v.

445
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed
OPOSA, minors, and represented by their parents ANTONIO and
RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her
parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and
PATRISHA, all surnamed FLORES, minors and represented by their
parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II
and MA. CONCEPCION, all surnamed MISA, minors and represented by
their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE
MARIE ALFARO, minor, represented by her parents JOSE and MARIA
VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented
by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO,
CARLO JOAQUIN T. NARVASA, minor, represented by his parents
GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS
IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ,
minors, represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all
surnamed KING, minors, represented by their parents MARIO and
HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed
ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA,
minors, represented by their parents ANTONIO and MARICA ABAYA,
MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors,
represented by their parents MARIO and LINA CARDAMA, CLARISSA,
ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and
represented by their parents RICARDO and MARISSA OPOSA, PHILIP
JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT,
minors, represented by their parents JOSE MAX and VILMI QUIPIT,
BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all
surnamed BIBAL, minors, represented by their parents FRANCISCO, JR.
and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK,
INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the
Secretary of the Department of Environment and Natural Resources,
and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the
RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a
balanced and healthful ecology which the petitioners dramatically
associate with the twin concepts of "inter-generational responsibility"
and "inter-generational justice." Specifically, it touches on the issue of
whether the said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and "arrest the
unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed
before Branch 66 (Makati, Metro Manila) of the Regional Trial Court
(RTC), National Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly represented and joined
by their respective parents. Impleaded as an additional plaintiff is the
Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-
profit corporation organized for the purpose of, inter alia, engaging in
concerted action geared for the protection of our environment and
446
natural resources. The original defendant was the Honorable Fulgencio S.
Factoran, Jr., then Secretary of the Department of Environment and
Natural Resources (DENR). His substitution in this petition by the new
Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon
proper motion by the petitioners.1 The complaint2 was instituted as a
taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the
Republic of the Philippines, taxpayers, and entitled to the full benefit, use
and enjoyment of the natural resource treasure that is the country's
virgin tropical forests." The same was filed for themselves and others
who are equally concerned about the preservation of said resource but
are "so numerous that it is impracticable to bring them all before the
Court." The minors further asseverate that they "represent their
generation as well as generations yet unborn."4 Consequently, it is
prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and
other persons acting in his behalf to
(1) Cancel all existing timber license agreements in the
country;
(2) Cease and desist from receiving, accepting,
processing, renewing or approving new timber license
agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under
the premises."5
The complaint starts off with the general averments that the Philippine
archipelago of 7,100 islands has a land area of thirty million (30,000,000)
hectares and is endowed with rich, lush and verdant rainforests in which
varied, rare and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures
which have existed, endured and flourished since time immemorial;
scientific evidence reveals that in order to maintain a balanced and
healthful ecology, the country's land area should be utilized on the basis
of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent
(46%) for agricultural, residential, industrial, commercial and other uses;
the distortion and disturbance of this balance as a consequence of
deforestation have resulted in a host of environmental tragedies, such as
(a) water shortages resulting from drying up of the water table,
otherwise known as the "aquifer," as well as of rivers, brooks and
streams, (b) salinization of the water table as a result of the intrusion
therein of salt water, incontrovertible examples of which may be found in
the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive
erosion and the consequential loss of soil fertility and agricultural
productivity, with the volume of soil eroded estimated at one billion
(1,000,000,000) cubic meters per annum approximately the size of the
entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and
dislocation of cultural communities, including the disappearance of the
Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a
critical reduction in marine resource productivity, (g) recurrent spells of
drought as is presently experienced by the entire country, (h) increasing
velocity of typhoon winds which result from the absence of
windbreakers, (i) the floodings of lowlands and agricultural plains arising
from the absence of the absorbent mechanism of forests, (j) the siltation
and shortening of the lifespan of multi-billion peso dams constructed and
operated for the purpose of supplying water for domestic uses, irrigation
and the generation of electric power, and (k) the reduction of the earth's
capacity to process carbon dioxide gases which has led to perplexing and
catastrophic climatic changes such as the phenomenon of global
warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences
of continued and deforestation are so capable of unquestionable
demonstration that the same may be submitted as a matter of judicial
notice. This notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic and film evidence
in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
447
7. Plaintiffs replead by reference the foregoing
allegations.
8. Twenty-five (25) years ago, the Philippines had some
sixteen (16) million hectares of rainforests constituting
roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there
remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land
area.
10. More recent surveys reveal that a mere 850,000
hectares of virgin old-growth rainforests are left, barely
2.8% of the entire land mass of the Philippine archipelago
and about 3.0 million hectares of immature and
uneconomical secondary growth forests.
11. Public records reveal that the defendant's,
predecessors have granted timber license agreements
('TLA's') to various corporations to cut the aggregate area
of 3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas
covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000
hectares per annum or 25 hectares per hour nighttime,
Saturdays, Sundays and holidays included the
Philippines will be bereft of forest resources after the end
of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious
injury and irreparable damage of this continued trend of
deforestation to the plaintiff minor's generation and to
generations yet unborn are evident and incontrovertible.
As a matter of fact, the environmental damages
enumerated in paragraph 6 hereof are already being felt,
experienced and suffered by the generation of plaintiff
adults.
14. The continued allowance by defendant of TLA holders
to cut and deforest the remaining forest stands will work
great damage and irreparable injury to plaintiffs
especially plaintiff minors and their successors who
may never see, use, benefit from and enjoy this rare and
unique natural resource treasure.
This act of defendant constitutes a misappropriation
and/or impairment of the natural resource property he
holds in trust for the benefit of plaintiff minors and
succeeding generations.
15. Plaintiffs have a clear and constitutional right to a
balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens
patriae.
16. Plaintiff have exhausted all administrative remedies
with the defendant's office. On March 2, 1990, plaintiffs
served upon defendant a final demand to cancel all
logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is
hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the
existing TLA's to the continuing serious damage and
extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to
cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with
a country that is desertified (sic), bare, barren and devoid
448
of the wonderful flora, fauna and indigenous cultures
which the Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned
TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which,
in pertinent part, states that it is the policy of the State
(a) to create, develop, maintain and improve conditions
under which man and nature can thrive in productive and
enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements
of present and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality
that is conductive to a life of dignity and well-being. (P.D.
1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel
the aforementioned TLA's is contradictory to the
Constitutional policy of the State to
a. effect "a more equitable distribution of opportunities,
income and wealth" and "make full and efficient use of
natural resources (sic)." (Section 1, Article XII of the
Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage
and resources (sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm
and harmony of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law
of humankind the natural law and violative of
plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy
in law other than the instant action to arrest the unabated
hemorrhage of the country's vital life support systems
and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a
Motion to Dismiss the complaint based on two (2) grounds, namely: (1)
the plaintiffs have no cause of action against him and (2) the issue raised
by the plaintiffs is a political question which properly pertains to the
legislative or executive branches of Government. In their 12 July 1990
Opposition to the Motion, the petitioners maintain that (1) the complaint
shows a clear and unmistakable cause of action, (2) the motion is dilatory
and (3) the action presents a justiciable question as it involves the
defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the
aforementioned motion to dismiss.7 In the said order, not only was the
defendant's claim that the complaint states no cause of action against
him and that it raises a political question sustained, the respondent
Judge further ruled that the granting of the relief prayed for would result
in the impairment of contracts which is prohibited by the fundamental
law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule
65 of the Revised Rules of Court and ask this Court to rescind and set
aside the dismissal order on the ground that the respondent Judge
gravely abused his discretion in dismissing the action. Again, the parents
of the plaintiffs-minors not only represent their children, but have also
joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the petition and
required the parties to submit their respective Memoranda after the
Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
449
Petitioners contend that the complaint clearly and unmistakably states a
cause of action as it contains sufficient allegations concerning their right
to a sound environment based on Articles 19, 20 and 21 of the Civil Code
(Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating
the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine
Environmental Policy), Section 16, Article II of the 1987 Constitution
recognizing the right of the people to a balanced and healthful ecology,
the concept of generational genocide in Criminal Law and the concept of
man's inalienable right to self-preservation and self-perpetuation
embodied in natural law. Petitioners likewise rely on the respondent's
correlative obligation per Section 4 of E.O. No. 192, to safeguard the
people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged
grave abuse of discretion in granting Timber License Agreements (TLAs)
to cover more areas for logging than what is available involves a judicial
question.
Anent the invocation by the respondent Judge of the Constitution's non-
impairment clause, petitioners maintain that the same does not apply in
this case because TLAs are not contracts. They likewise submit that even
if TLAs may be considered protected by the said clause, it is well settled
that they may still be revoked by the State when the public interest so
requires.
On the other hand, the respondents aver that the petitioners failed to
allege in their complaint a specific legal right violated by the respondent
Secretary for which any relief is provided by law. They see nothing in the
complaint but vague and nebulous allegations concerning an
"environmental right" which supposedly entitles the petitioners to the
"protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They
then reiterate the theory that the question of whether logging should be
permitted in the country is a political question which should be properly
addressed to the executive or legislative branches of Government. They
therefore assert that the petitioners' resources is not to file an action to
court, but to lobby before Congress for the passage of a bill that would
ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that
the same cannot be done by the State without due process of law. Once
issued, a TLA remains effective for a certain period of time usually for
twenty-five (25) years. During its effectivity, the same can neither be
revised nor cancelled unless the holder has been found, after due notice
and hearing, to have violated the terms of the agreement or other
forestry laws and regulations. Petitioners' proposition to have all the
TLAs indiscriminately cancelled without the requisite hearing would be
violative of the requirements of due process.
Before going any further, We must first focus on some procedural
matters. Petitioners instituted Civil Case No. 90-777 as a class suit. The
original defendant and the present respondents did not take issue with
this matter. Nevertheless, We hereby rule that the said civil case is indeed
a class suit. The subject matter of the complaint is of common and
general interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it, becomes
impracticable, if not totally impossible, to bring all of them before the
court. We likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all concerned
interests. Hence, all the requisites for the filing of a valid class suit under
Section 12, Rule 3 of the Revised Rules of Court are present both in the
said civil case and in the instant petition, the latter being but an incident
to the former.
This case, however, has a special and novel element. Petitioners minors
assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for
others of their generation and for the succeeding generations, file a class
suit. Their personality to sue in behalf of the succeeding generations can
only be based on the concept of intergenerational responsibility insofar
as the right to a balanced and healthful ecology is concerned. Such a
right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in
its entirety.9 Such rhythm and harmony indispensably include, inter alia,
the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their
450
exploration, development and utilization be equitably accessible to the
present as well as future generations. 10 Needless to say, every
generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology. Put a
little differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the generations to
come.
The locus standi of the petitioners having thus been addressed, We shall
now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous
consideration and evaluation of the issues raised and arguments adduced
by the parties, We do not hesitate to find for the petitioners and rule
against the respondent Judge's challenged order for having been issued
with grave abuse of discretion amounting to lack of jurisdiction. The
pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the
Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have
but the noblest of all intentions, it (sic) fell short of
alleging, with sufficient definiteness, a specific legal right
they are seeking to enforce and protect, or a specific legal
wrong they are seeking to prevent and redress (Sec. 1,
Rule 2, RRC). Furthermore, the Court notes that the
Complaint is replete with vague assumptions and vague
conclusions based on unverified data. In fine, plaintiffs fail
to state a cause of action in its Complaint against the
herein defendant.
Furthermore, the Court firmly believes that the matter
before it, being impressed with political color and
involving a matter of public policy, may not be taken
cognizance of by this Court without doing violence to the
sacred principle of "Separation of Powers" of the three
(3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease
and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
For to do otherwise would amount to "impairment of
contracts" abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed
to allege with sufficient definiteness a specific legal right involved or a
specific legal wrong committed, and that the complaint is replete with
vague assumptions and conclusions based on unverified data. A reading
of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the
right to a balanced and healthful ecology which, for the first time in our
nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution explicitly
provides:
Sec. 16. The State shall protect and advance the right of
the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.
This right unites with the right to health which is provided
for in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to
health of the people and instill health consciousness
among them.
While the right to a balanced and healthful ecology is to be found under
the Declaration of Principles and State Policies and not under the Bill of
451
Rights, it does not follow that it is less important than any of the civil and
political rights enumerated in the latter. Such a right belongs to a
different category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation aptly and fittingly stressed by
the petitioners the advancement of which may even be said to predate
all governments and constitutions. As a matter of fact, these basic rights
need not even be written in the Constitution for they are assumed to
exist from the inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the well-founded
fear of its framers that unless the rights to a balanced and healthful
ecology and to health are mandated as state policies by the Constitution
itself, thereby highlighting their continuing importance and imposing
upon the state a solemn obligation to preserve the first and protect and
advance the second, the day would not be too far when all else would be
lost not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth incapable
of sustaining life.
The right to a balanced and healthful ecology carries with it the
correlative duty to refrain from impairing the environment. During the
debates on this right in one of the plenary sessions of the 1986
Constitutional Commission, the following exchange transpired between
Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who
sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to
provide sanctions against all forms of
pollution air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to
healthful (sic) environment necessarily
carries with it the correlative duty of not
impairing the same and, therefore,
sanctions may be provided for impairment
of environmental balance. 12
The said right implies, among many other things, the judicious
management and conservation of the country's forests.
Without such forests, the ecological or environmental balance
would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful
ecology and the right to health, as well as the other related provisions of
the Constitution concerning the conservation, development and
utilization of the country's natural resources, 13 then President Corazon
C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of
which expressly mandates that the Department of Environment and
Natural Resources "shall be the primary government agency responsible
for the conservation, management, development and proper use of the
country's environment and natural resources, specifically forest and
grazing lands, mineral, resources, including those in reservation and
watershed areas, and lands of the public domain, as well as the licensing
and regulation of all natural resources as may be provided for by law in
order to ensure equitable sharing of the benefits derived therefrom for
the welfare of the present and future generations of Filipinos." Section 3
thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the
policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of
the country's forest, mineral, land, off-shore areas and
other natural resources, including the protection and
enhancement of the quality of the environment, and
equitable access of the different segments of the
population to the development and the use of the
country's natural resources, not only for the present
generation but for future generations as well. It is also the
policy of the state to recognize and apply a true value
system including social and environmental cost
452
 implications relative to their utilization, development and
conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987,15 specifically in Section 1 thereof which
reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure,
for the benefit of the Filipino people, the full exploration
and development as well as the judicious disposition,
utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife,
off-shore areas and other natural resources, consistent
with the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the
environment and the objective of making the exploration,
development and utilization of such natural resources
equitably accessible to the different segments of the
present as well as future generations.
(2) The State shall likewise recognize and apply a true
value system that takes into account social and
environmental cost implications relative to the utilization,
development and conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound
ecological balance and protecting and enhancing the quality of the
environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular
reference to the fact of the agency's being subject to law and higher
authority. Said section provides:
Sec. 2. Mandate. (1) The Department of Environment
and Natural Resources shall be primarily responsible for
the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in
charge of carrying out the State's constitutional mandate
to control and supervise the exploration, development,
utilization, and conservation of the country's natural
resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the
objectives which will serve as the bases for policy formulation, and have
defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the
"environmental right" of the present and future generations. On 6 June
1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former "declared a
continuing policy of the State (a) to create, develop, maintain and
improve conditions under which man and nature can thrive in productive
and enjoyable harmony with each other, (b) to fulfill the social, economic
and other requirements of present and future generations of Filipinos,
and (c) to insure the attainment of an environmental quality that is
conducive to a life of dignity and well-being." 16 As its goal, it speaks of
the "responsibilities of each generation as trustee and guardian of the
environment for succeeding generations." 17 The latter statute, on the
other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a
balanced and healthful ecology is as clear as the DENR's duty under its
mandate and by virtue of its powers and functions under E.O. No. 192 and
the Administrative Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty
or obligation to respect or protect the same gives rise to a cause of
action. Petitioners maintain that the granting of the TLAs, which they
claim was done with grave abuse of discretion, violated their right to a
balanced and healthful ecology; hence, the full protection thereof
requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
453
 . . . an act or omission of one party in violation of the legal
right or rights of the other; and its essential elements are
legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in
violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the
ground that the complaint fails to state a cause of action, 19 the question
submitted to the court for resolution involves the sufficiency of the facts
alleged in the complaint itself. No other matter should be considered;
furthermore, the truth of falsity of the said allegations is beside the point
for the truth thereof is deemed hypothetically admitted. The only issue to
be resolved in such a case is: admitting such alleged facts to be true, may
the court render a valid judgment in accordance with the prayer in the
complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule
that the judiciary should "exercise the utmost care and circumspection in
passing upon a motion to dismiss on the ground of the absence thereof
[cause of action] lest, by its failure to manifest a correct appreciation of
the facts alleged and deemed hypothetically admitted, what the law
grants or recognizes is effectively nullified. If that happens, there is a blot
on the legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the
statements under the introductory affirmative allegations, as well as the
specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their
rights. On the basis thereof, they may thus be granted, wholly or partly,
the reliefs prayed for. It bears stressing, however, that insofar as the
cancellation of the TLAs is concerned, there is the need to implead, as
party defendants, the grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political
question. Policy formulation or determination by the executive or
legislative branches of Government is not squarely put in issue. What is
principally involved is the enforcement of a right vis-a-vis policies already
formulated and expressed in legislation. It must, nonetheless, be
emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from
judicial inquiry or review. The second paragraph of section 1, Article VIII of
the Constitution states that:
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr.
Justice Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional
concept of judicial power, involving the settlement of
conflicting rights as conferred as law. The second part of
the authority represents a broadening of judicial power to
enable the courts of justice to review what was before
forbidden territory, to wit, the discretion of the political
departments of the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon
even the wisdom of the decisions of the executive and
the legislature and to declare their acts invalid for lack or
excess of jurisdiction because tainted with grave abuse of
discretion. The catch, of course, is the meaning of "grave
abuse of discretion," which is a very elastic phrase that
can expand or contract according to the disposition of the
judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court,
noted:
In the case now before us, the jurisdictional objection
becomes even less tenable and decisive. The reason is
454
 that, even if we were to assume that the issue presented
before us was political in nature, we would still not be
precluded from revolving it under the expanded
jurisdiction conferred upon us that now covers, in proper
cases, even the political question. Article VII, Section 1, of
the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is
the non-impairment of contracts clause found in the Constitution. The
court a quo declared that:
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease
and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
For to do otherwise would amount to "impairment of
contracts" abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not
shocked, by such a sweeping pronouncement. In the first place, the
respondent Secretary did not, for obvious reasons, even invoke in his
motion to dismiss the non-impairment clause. If he had done so, he would
have acted with utmost infidelity to the Government by providing undue
and unwarranted benefits and advantages to the timber license holders
because he would have forever bound the Government to strictly respect
the said licenses according to their terms and conditions regardless of
changes in policy and the demands of public interest and welfare. He was
aware that as correctly pointed out by the petitioners, into every timber
license must be read Section 20 of the Forestry Reform Code (P.D. No.
705) which provides:
. . . Provided, That when the national interest so requires,
the President may amend, modify, replace or rescind any
contract, concession, permit, licenses or any other form
of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by
executive action. It is not a contract, property or a property right
protested by the due process clause of the Constitution. In Tan vs.
Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State
regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. A
timber license is not a contract within the purview of the
due process clause; it is only a license or privilege, which
can be validly withdrawn whenever dictated by public
interest or public welfare as in this case.
A license is merely a permit or privilege to do what
otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal,
granting it and the person to whom it is granted; neither
is it property or a property right, nor does it create a
vested right; nor is it taxation (37 C.J. 168). Thus, this
Court held that the granting of license does not create
irrevocable rights, neither is it property or property rights
(People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs.
Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are
the principal instruments by which the State regulates the
utilization and disposition of forest resources to the end
that public welfare is promoted. And it can hardly be
gainsaid that they merely evidence a privilege granted by
the State to qualified entities, and do not vest in the latter
a permanent or irrevocable right to the particular
concession area and the forest products therein. They
may be validly amended, modified, replaced or rescinded
by the Chief Executive when national interests so require.
Thus, they are not deemed contracts within the purview
of the due process of law clause [See Sections 3(ee) and
455
 20 of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983,
125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which
reads:
Sec. 10. No law impairing, the obligation of contracts shall
be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are
contracts, the instant case does not involve a law or even an executive
issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This is because
by its very nature and purpose, such as law could have only been passed
in the exercise of the police power of the state for the purpose of
advancing the right of the people to a balanced and healthful ecology,
promoting their health and enhancing the general welfare. In Abe vs.
Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of
government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative
regulation aimed at the promotion of public health, moral,
safety and welfare. In other words, the constitutional
guaranty of non-impairment of obligations of contract is
limited by the exercise of the police power of the State, in
the interest of public health, safety, moral and general
welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29
quoted in Philippine American Life Insurance Co. vs. Auditor General,30 to
wit:
Under our form of government the use of property and
the making of contracts are normally matters of private
and not of public concern. The general rule is that both
shall be free of governmental interference. But neither
property rights nor contract rights are absolute; for
government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his
freedom of contract to work them harm. Equally
fundamental with the private right is that of the public to
regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the
state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-
impairment clause could apply with respect to the prayer to enjoin the
respondent Secretary from receiving, accepting, processing, renewing or
approving new timber licenses for, save in cases of renewal, no contract
would have as of yet existed in the other instances. Moreover, with
respect to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby
GRANTED, and the challenged Order of respondent Judge of 18 July 1991
dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or
grantees of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo
and Quiason, JJ., concur.
456
Narvasa, C.J., Puno and Vitug, JJ., took no part.
Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court,
Davide, Jr., J., in this case which, to my mind, is one of the most important
cases decided by this Court in the last few years. The seminal principles
laid down in this decision are likely to influence profoundly the direction
and course of the protection and management of the environment,
which of course embraces the utilization of all the natural resources in
the territorial base of our polity. I have therefore sought to clarify,
basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary
to sustain the bringing and, maintenance of this suit (Decision, pp. 11-12).
Locus standi is not a function of petitioners' claim that their suit is
properly regarded as a class suit. I understand locus standi to refer to the
legal interest which a plaintiff must have in the subject matter of the suit.
Because of the very broadness of the concept of "class" here involved
membership in this "class" appears to embrace everyone living in the
country whether now or in the
future it appears to me that everyone who may be expected to benefit
from the course of action petitioners seek to require public respondents
to take, is vested with the necessary locus standi. The Court may be seen
therefore to be recognizing a beneficiaries' right of action in the field of
environmental protection, as against both the public administrative
agency directly concerned and the private persons or entities operating in
the field or sector of activity involved. Whether such beneficiaries' right
of action may be found under any and all circumstances, or whether
some failure to act, in the first instance, on the part of the governmental
agency concerned must be shown ("prior exhaustion of administrative
remedies"), is not discussed in the decision and presumably is left for
future determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused
upon "one specific fundamental legal right the right to a balanced and
healthful ecology" (Decision, p. 14). There is no question that "the right to
a balanced and healthful ecology" is "fundamental" and that, accordingly,
it has been "constitutionalized." But although it is fundamental in
character, I suggest, with very great respect, that it cannot be
characterized as "specific," without doing excessive violence to language.
It is in fact very difficult to fashion language more comprehensive in
scope and generalized in character than a right to "a balanced and
healthful ecology." The list of particular claims which can be subsumed
under this rubic appears to be entirely open-ended: prevention and
control of emission of toxic fumes and smoke from factories and motor
vehicles; of discharge of oil, chemical effluents, garbage and raw sewage
into rivers, inland and coastal waters by vessels, oil rigs, factories, mines
and whole communities; of dumping of organic and inorganic wastes on
open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming;
destruction of fisheries, coral reefs and other living sea resources through
the use of dynamite or cyanide and other chemicals; contamination of
ground water resources; loss of certain species of fauna and flora; and so
on. The other statements pointed out by the Court: Section 3, Executive
Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987
Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to
be formulations of policy, as general and abstract as the constitutional
statements of basic policy in Article II, Section 16 ("the right to a
balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine
Environment Code," is, upon the other hand, a compendious collection of
more "specific environment management policies" and "environment
457
quality standards" (fourth "Whereas" clause, Preamble) relating to an
extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation
embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground
water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither
petitioners nor the Court has identified the particular provision or
provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the
Philippine Environment Code identifies with notable care the particular
government agency charged with the formulation and implementation of
guidelines and programs dealing with each of the headings and sub-
headings mentioned above. The Philippine Environment Code does not, in
other words, appear to contemplate action on the part of private persons
who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored
on a legal right comprised in the constitutional statements above noted,
the Court is in effect saying that Section 15 (and Section 16) of Article II of
the Constitution are self-executing and judicially enforceable even in their
present form. The implications of this doctrine will have to be explored in
future cases; those implications are too large and far-reaching in nature
even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court,
show a more specific legal right a right cast in language of a
significantly lower order of generality than Article II (15) of the
Constitution that is or may be violated by the actions, or failures to act,
imputed to the public respondent by petitioners so that the trial court
can validly render judgment granting all or part of the relief prayed for. To
my mind, the Court should be understood as simply saying that such a
more specific legal right or rights may well exist in our corpus of law,
considering the general policy principles found in the Constitution and
the existence of the Philippine Environment Code, and that the trial court
should have given petitioners an effective opportunity so to
demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential
component of a cause of action be a specific, operable legal right, rather
than a constitutional or statutory policy, for at least two (2) reasons. One
is that unless the legal right claimed to have been violated or disregarded
is given specification in operational terms, defendants may well be unable
to defend themselves intelligently and effectively; in other words, there
are due process dimensions to this matter.
The second is a broader-gauge consideration where a specific violation
of law or applicable regulation is not alleged or proved, petitioners can be
expected to fall back on the expanded conception of judicial power in the
second paragraph of Section 1 of Article VIII of the Constitution which
reads:
Section 1. . . .
458
 Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
(Emphasis supplied)
When substantive standards as general as "the right to a
balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction,"
the result will be, it is respectfully submitted, to propel courts into
the uncharted ocean of social and economic policy making. At
least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical
competence and experience and professional qualification.
Where no specific, operable norms and standards are shown to
exist, then the policy making departments the legislative and
executive departments must be given a real and effective
opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should
intervene.
My learned brother Davide, Jr., J., rightly insists that the timber
companies, whose concession agreements or TLA's petitioners demand
public respondents should cancel, must be impleaded in the proceedings
below. It might be asked that, if petitioners' entitlement to the relief
demanded is not dependent upon proof of breach by the timber
companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may
seek to dispute the existence of the specific legal right petitioners should
allege, as well as the reality of the claimed factual nexus between
petitioners' specific legal rights and the claimed wrongful acts or failures
to act of public respondent administrative agency. They may also
controvert the appropriateness of the remedy or remedies demanded by
petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the
environment, including the forest cover of our territory, is of extreme
importance for the country. The doctrines set out in the Court's decision
issued today should, however, be subjected to closer examination.
# Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court,
Davide, Jr., J., in this case which, to my mind, is one of the most important
cases decided by this Court in the last few years. The seminal principles
laid down in this decision are likely to influence profoundly the direction
and course of the protection and management of the environment,
which of course embraces the utilization of all the natural resources in
the territorial base of our polity. I have therefore sought to clarify,
basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary
to sustain the bringing and, maintenance of this suit (Decision, pp. 11-12).
Locus standi is not a function of petitioners' claim that their suit is
properly regarded as a class suit. I understand locus standi to refer to the
legal interest which a plaintiff must have in the subject matter of the suit.
Because of the very broadness of the concept of "class" here involved
membership in this "class" appears to embrace everyone living in the
country whether now or in the
future it appears to me that everyone who may be expected to benefit
from the course of action petitioners seek to require public respondents
to take, is vested with the necessary locus standi. The Court may be seen
therefore to be recognizing a beneficiaries' right of action in the field of
environmental protection, as against both the public administrative
agency directly concerned and the private persons or entities operating in
the field or sector of activity involved. Whether such beneficiaries' right
459
of action may be found under any and all circumstances, or whether (a) air quality management;
some failure to act, in the first instance, on the part of the governmental
agency concerned must be shown ("prior exhaustion of administrative (b) water quality management;
remedies"), is not discussed in the decision and presumably is left for
future determination in an appropriate case. (c) land use management;

The Court has also declared that the complaint has alleged and focused (d) natural resources management and conservation
upon "one specific fundamental legal right the right to a balanced and embracing:
healthful ecology" (Decision, p. 14). There is no question that "the right to
a balanced and healthful ecology" is "fundamental" and that, accordingly, (i) fisheries and aquatic resources;
it has been "constitutionalized." But although it is fundamental in
character, I suggest, with very great respect, that it cannot be (ii) wild life;
characterized as "specific," without doing excessive violence to language.
It is in fact very difficult to fashion language more comprehensive in (iii) forestry and soil conservation;
scope and generalized in character than a right to "a balanced and
healthful ecology." The list of particular claims which can be subsumed (iv) flood control and natural calamities;
under this rubic appears to be entirely open-ended: prevention and
control of emission of toxic fumes and smoke from factories and motor (v) energy development;
vehicles; of discharge of oil, chemical effluents, garbage and raw sewage
into rivers, inland and coastal waters by vessels, oil rigs, factories, mines (vi) conservation and utilization of surface and ground
and whole communities; of dumping of organic and inorganic wastes on water
open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; (vii) mineral resources
destruction of fisheries, coral reefs and other living sea resources through
the use of dynamite or cyanide and other chemicals; contamination of
Two (2) points are worth making in this connection. Firstly, neither
ground water resources; loss of certain species of fauna and flora; and so
petitioners nor the Court has identified the particular provision or
on. The other statements pointed out by the Court: Section 3, Executive
provisions (if any) of the Philippine Environment Code which give rise to a
Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987
specific legal right which petitioners are seeking to enforce. Secondly, the
Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to
Philippine Environment Code identifies with notable care the particular
be formulations of policy, as general and abstract as the constitutional
government agency charged with the formulation and implementation of
statements of basic policy in Article II, Section 16 ("the right to a
guidelines and programs dealing with each of the headings and sub-
balanced and healthful ecology") and 15 ("the right to health").
headings mentioned above. The Philippine Environment Code does not, in
other words, appear to contemplate action on the part of private persons
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine who are beneficiaries of implementation of that Code.
Environment Code," is, upon the other hand, a compendious collection of
more "specific environment management policies" and "environment
As a matter of logic, by finding petitioners' cause of action as anchored
quality standards" (fourth "Whereas" clause, Preamble) relating to an
on a legal right comprised in the constitutional statements above noted,
extremely wide range of topics:
460
the Court is in effect saying that Section 15 (and Section 16) of Article II of
the Constitution are self-executing and judicially enforceable even in their
present form. The implications of this doctrine will have to be explored in
future cases; those implications are too large and far-reaching in nature
even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court,
show a more specific legal right a right cast in language of a
significantly lower order of generality than Article II (15) of the
Constitution that is or may be violated by the actions, or failures to act,
imputed to the public respondent by petitioners so that the trial court
can validly render judgment granting all or part of the relief prayed for. To
my mind, the Court should be understood as simply saying that such a
more specific legal right or rights may well exist in our corpus of law,
considering the general policy principles found in the Constitution and
the existence of the Philippine Environment Code, and that the trial court
should have given petitioners an effective opportunity so to
demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential
component of a cause of action be a specific, operable legal right, rather
than a constitutional or statutory policy, for at least two (2) reasons. One
is that unless the legal right claimed to have been violated or disregarded
is given specification in operational terms, defendants may well be unable
to defend themselves intelligently and effectively; in other words, there
are due process dimensions to this matter.
The second is a broader-gauge consideration where a specific violation
of law or applicable regulation is not alleged or proved, petitioners can be
expected to fall back on the expanded conception of judicial power in the
second paragraph of Section 1 of Article VIII of the Constitution which
reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
(Emphasis supplied)
When substantive standards as general as "the right to a
balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction,"
the result will be, it is respectfully submitted, to propel courts into
the uncharted ocean of social and economic policy making. At
least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical
competence and experience and professional qualification.
Where no specific, operable norms and standards are shown to
exist, then the policy making departments the legislative and
executive departments must be given a real and effective
opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should
intervene.
My learned brother Davide, Jr., J., rightly insists that the timber
companies, whose concession agreements or TLA's petitioners demand
public respondents should cancel, must be impleaded in the proceedings
below. It might be asked that, if petitioners' entitlement to the relief
demanded is not dependent upon proof of breach by the timber
companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may
seek to dispute the existence of the specific legal right petitioners should
allege, as well as the reality of the claimed factual nexus between
petitioners' specific legal rights and the claimed wrongful acts or failures
to act of public respondent administrative agency. They may also
controvert the appropriateness of the remedy or remedies demanded by
petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the
environment, including the forest cover of our territory, is of extreme
461
importance for the country. The doctrines set out in the Court's decision
issued today should, however, be subjected to closer examination.
# Footnotes
1 Rollo, 164; 186.
2 Id., 62-65, exclusive of annexes.
3 Under Section 12, Rule 3, Revised Rules of Court.
4 Rollo, 67.
5 Id., 74.
6 Rollo, 70-73.
7 Annex "B" of Petitions; Id., 43-44.
8 Paragraph 7, Petition, 6; Rollo, 20.
9 Webster's Third New International Dictionary,
unabridged, 1986, 1508.
10 Title XIV (Environment and Natural Resources), Book IV
of the Administrative Code of 1987, E.O. No. 292.
11 Annex "B" of Petition; Rollo, 43-44.
12 Record of the Constitutional Commission, vol. 4, 913.
13 For instance, the Preamble and Article XII on the
National Economy and Patrimony.
14 The Reorganization Act of the Department of
Environment and Natural Resources.
15 E.O. No. 292.
16 Section 1.
17 Section 2.
18 Ma-ao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947];
Community Investment and Finance Corp. vs. Garcia, 88
Phil. 215 [1951]; Remitere vs. Vda. de Yulo, 16 SCRA 251
[1966]; Caseas vs. Rosales, 19 SCRA 462 [1967]; Virata vs.
Sandiganbayan, 202 SCRA 680 [1991]; Madrona vs. Rosal,
204 SCRA 1 [1991].
19 Section 1(q), Rule 16, Revised Rules of Court.
20 Adamos vs. J.M. Tuason and Co., Inc. 25 SCRA 529
[1968]; Virata vs. Sandiganbayn, supra; Madrona vs. Rosal,
supra.
21 39 SCRA 473, 479 [1971].
22 1991 ed., 226-227.
23 180 SCRA 496, 501-502 [1989]. See also, Coseteng vs.
Mitra, 187 SCRA 377 [1990]; Gonzales vs. Macaraig, 191
SCRA 452 [1990]; Llamas vs. Orbos, 202 SCRA 844 [1991];
Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA
767 [1991].
24 Rollo, 44.
25 125 SCRA 302, 325 [1983].
26 190 SCRA 673, 684 [1990].
27 Article III, 1987 Constitution.
462
28 110 Phil. 198, 203 [1960]; footnotes omitted.
29 291 U.S. 502, 523, 78 L. ed. 940, 947-949.
30 22 SCRA 135, 146-147 [1968].
31 Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster
Wheeler Corp. supra.; Phil. American Life Insurance Co. vs.
Auditor General, supra.; Alalayan vs. NPC, 24 SCRA
172[1968]; Victoriano vs. Elizalde Rope Workers' Union, 59
SCRA 54 [1974]; Kabiling vs. National Housing Authority,
156 SCRA 623 [1987].
G.R. No. 161872 April 13, 2004
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for
President on December 17, 2003. Respondent Commission on Elections
(COMELEC) refused to give due course to petitioners Certificate of
Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision,
however, was not unanimous since Commissioners Luzviminda G.
Tancangco and Mehol K. Sadain voted to include petitioner as they
believed he had parties or movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution
No. 6558. Petitioners Motion for Reconsideration was docketed as SPP
(MP) No. 04-001. The COMELEC, acting on petitioners Motion for
Reconsideration and on similar motions filed by other aspirants for
national elective positions, denied the same under the aegis of Omnibus
Resolution No. 6604 dated February 11, 2004. The COMELEC declared
petitioner and thirty-five (35) others nuisance candidates who could not
wage a nationwide campaign and/or are not nominated by a political
party or are not supported by a registered political party with a national
constituency. Commissioner Sadain maintained his vote for petitioner. By
then, Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the
resolutions which were allegedly rendered in violation of his right to
"equal access to opportunities for public service" under Section 26,
Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those
who can afford to wage a nationwide campaign and/or are nominated by
463
political parties. In so doing, petitioner argues that the COMELEC
indirectly amended the constitutional provisions on the electoral process
and limited the power of the sovereign people to choose their leaders.
The COMELEC supposedly erred in disqualifying him since he is the most
qualified among all the presidential candidates, i.e., he possesses all the
constitutional and legal qualifications for the office of the president, he is
capable of waging a national campaign since he has numerous national
organizations under his leadership, he also has the capacity to wage an
international campaign since he has practiced law in other countries, and
he has a platform of government. Petitioner likewise attacks the validity
of the form for the Certificate of Candidacy prepared by the COMELEC.
Petitioner claims that the form does not provide clear and reasonable
guidelines for determining the qualifications of candidates since it does
not ask for the candidates bio-data and his program of government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioners invocation of the constitutional provision
ensuring "equal access to opportunities for public office" is the claim that
there is a constitutional right to run for or hold public office and,
particularly in his case, to seek the presidency. There is none. What is
recognized is merely a privilege subject to limitations imposed by law.
Section 26, Article II of the Constitution neither bestows such a right nor
elevates the privilege to the level of an enforceable right. There is nothing
in the plain language of the provision which suggests such a thrust or
justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the
Constitution, entitled "Declaration of Principles and State Policies." The
provisions under the Article are generally considered not self-executing,2
and there is no plausible reason for according a different treatment to the
"equal access" provision. Like the rest of the policies enumerated in
Article II, the provision does not contain any judicially enforceable
constitutional right but merely specifies a guideline for legislative or
executive action.3 The disregard of the provision does not give rise to any
cause of action before the courts.4
An inquiry into the intent of the framers5 produces the same
determination that the provision is not self-executory. The original
wording of the present Section 26, Article II had read, "The State shall
broaden opportunities to public office and prohibit public dynasties."6
Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought
forth an amendment that changed the word "broaden" to the phrase
"ensure equal access," and the substitution of the word "office" to
"service." He explained his proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO"
because what is important would be equal access to the
opportunity. If you broaden, it would necessarily mean that the
government would be mandated to create as many offices as are
possible to accommodate as many people as are also possible.
That is the meaning of broadening opportunities to public service.
So, in order that we should not mandate the State to make the
government the number one employer and to limit offices only
to what may be necessary and expedient yet offering equal
opportunities to access to it, I change the word "broaden."7
(emphasis supplied)
Obviously, the provision is not intended to compel the State to enact
positive measures that would accommodate as many people as possible
into public office. The approval of the "Davide amendment" indicates the
design of the framers to cast the provision as simply enunciatory of a
desired policy objective and not reflective of the imposition of a clear
State burden.
Moreover, the provision as written leaves much to be desired if it is to be
regarded as the source of positive rights. It is difficult to interpret the
clause as operative in the absence of legislation since its effective means
and reach are not properly defined. Broadly written, the myriad of claims
that can be subsumed under this rubric appear to be entirely open-
ended.8 Words and phrases such as "equal access," "opportunities," and
"public service" are susceptible to countless interpretations owing to
their inherent impreciseness. Certainly, it was not the intention of the
framers to inflict on the people an operative but amorphous foundation
from which innately unenforceable rights may be sourced.
464
As earlier noted, the privilege of equal access to opportunities to public
office may be subjected to limitations. Some valid limitations specifically
on the privilege to seek elective office are found in the provisions9 of the
Omnibus Election Code on "Nuisance Candidates" and COMELEC
Resolution No. 645210 dated December 10, 2002 outlining the instances
wherein the COMELEC may motu proprio refuse to give due course to or
cancel a Certificate of Candidacy.
As long as the limitations apply to everybody equally without
discrimination, however, the equal access clause is not violated. Equality
is not sacrificed as long as the burdens engendered by the limitations are
meant to be borne by any one who is minded to file a certificate of
candidacy. In the case at bar, there is no showing that any person is
exempt from the limitations or the burdens which they create.
Significantly, petitioner does not challenge the constitutionality or validity
of Section 69 of the Omnibus Election Code and COMELEC Resolution No.
6452 dated 10 December 2003. Thus, their presumed validity stands and
has to be accorded due weight.
Clearly, therefore, petitioners reliance on the equal access clause in
Section 26, Article II of the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the
disqualification of candidates who have not evinced a bona fide intention
to run for office is easy to divine. The State has a compelling interest to
ensure that its electoral exercises are rational, objective, and orderly.
Towards this end, the State takes into account the practical
considerations in conducting elections. Inevitably, the greater the
number of candidates, the greater the opportunities for logistical
confusion, not to mention the increased allocation of time and resources
in preparation for the election. These practical difficulties should, of
course, never exempt the State from the conduct of a mandated
electoral exercise. At the same time, remedial actions should be available
to alleviate these logistical hardships, whenever necessary and proper.
Ultimately, a disorderly election is not merely a textbook example of
inefficiency, but a rot that erodes faith in our democratic institutions. As
the United States Supreme Court held:
[T]here is surely an important state interest in requiring some
preliminary showing of a significant modicum of support before
printing the name of a political organization and its candidates on
the ballot the interest, if no other, in avoiding confusion,
deception and even frustration of the democratic [process].11
The COMELEC itself recognized these practical considerations when it
promulgated Resolution No. 6558 on 17 January 2004, adopting the study
Memorandum of its Law Department dated 11 January 2004. As observed
in the COMELECs Comment:
There is a need to limit the number of candidates especially in the
case of candidates for national positions because the election
process becomes a mockery even if those who cannot clearly
wage a national campaign are allowed to run. Their names would
have to be printed in the Certified List of Candidates, Voters
Information Sheet and the Official Ballots. These would entail
additional costs to the government. For the official ballots in
automated counting and canvassing of votes, an additional page
would amount to more or less FOUR HUNDRED FIFTY MILLION
PESOS (450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to
continue if they cannot wage a decent campaign enough to
project the prospect of winning, no matter how slim.12
The preparation of ballots is but one aspect that would be affected by
allowance of "nuisance candidates" to run in the elections. Our election
laws provide various entitlements for candidates for public office, such as
watchers in every polling place,13 watchers in the board of canvassers,14 or
even the receipt of electoral contributions.15 Moreover, there are election
rules and regulations the formulations of which are dependent on the
number of candidates in a given election.
Given these considerations, the ignominious nature of a nuisance
candidacy becomes even more galling. The organization of an election
with bona fide candidates standing is onerous enough. To add into the
mix candidates with no serious intentions or capabilities to run a viable
465
campaign would actually impair the electoral process. This is not to
mention the candidacies which are palpably ridiculous so as to constitute
a one-note joke. The poll body would be bogged by irrelevant minutiae
covering every step of the electoral process, most probably posed at the
instance of these nuisance candidates. It would be a senseless sacrifice on
the part of the State.
Owing to the superior interest in ensuring a credible and orderly election,
the State could exclude nuisance candidates and need not indulge in, as
the song goes, "their trips to the moon on gossamer wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are
cognizant of the compelling State interest to ensure orderly and credible
elections by excising impediments thereto, such as nuisance candidacies
that distract and detract from the larger purpose. The COMELEC is
mandated by the Constitution with the administration of elections16 and
endowed with considerable latitude in adopting means and methods that
will ensure the promotion of free, orderly and honest elections.17
Moreover, the Constitution guarantees that only bona fide candidates for
public office shall be free from any form of harassment and
discrimination.18 The determination of bona fide candidates is governed
by the statutes, and the concept, to our mind is, satisfactorily defined in
the Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their
proper application in the case of the petitioner cannot be tested and
reviewed by this Court on the basis of what is now before it. The assailed
resolutions of the COMELEC do not direct the Court to the evidence
which it considered in determining that petitioner was a nuisance
candidate. This precludes the Court from reviewing at this instance
whether the COMELEC committed grave abuse of discretion in
disqualifying petitioner, since such a review would necessarily take into
account the matters which the COMELEC considered in arriving at its
decisions.
Petitioner has submitted to this Court mere photocopies of various
documents purportedly evincing his credentials as an eligible candidate
for the presidency. Yet this Court, not being a trier of facts, can not
properly pass upon the reproductions as evidence at this level. Neither
the COMELEC nor the Solicitor General appended any document to their
respective Comments.
The question of whether a candidate is a nuisance candidate or not is
both legal and factual. The basis of the factual determination is not
before this Court. Thus, the remand of this case for the reception of
further evidence is in order.
A word of caution is in order. What is at stake is petitioners aspiration
and offer to serve in the government. It deserves not a cursory treatment
but a hearing which conforms to the requirements of due process.
As to petitioners attacks on the validity of the form for the certificate of
candidacy, suffice it to say that the form strictly complies with Section 74
of the Omnibus Election Code. This provision specifically enumerates
what a certificate of candidacy should contain, with the required
information tending to show that the candidate possesses the minimum
qualifications for the position aspired for as established by the
Constitution and other election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is
hereby remanded to the COMELEC for the reception of further evidence,
to determine the question on whether petitioner Elly Velez Lao Pamatong
is a nuisance candidate as contemplated in Section 69 of the Omnibus
Election Code.
The COMELEC is directed to hold and complete the reception of evidence
and report its findings to this Court with deliberate dispatch.
SO ORDERED.
466

Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr., and Azcuna, JJ., concur.
Footnotes
* On Official Leave.
1 proprio or upon a verified petition of an interested party, refuse
Sec. 26. The State shall guarantee equal access to opportunities
for public service, and prohibit political dynasties as may be
defined by law.
2
See Basco v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 52,
68; Kilosbayan, Inc. v. Morato, G.R. No. 118910, 246 SCRA 540,
564. "A provision which lays down a general principle, such as
those found in Art. II of the 1987 Constitution, is usually not self-
executing." Manila Prince Hotel v. GSIS, G.R. No. 122156, 3
February 1997, 267 SCRA 408, 431. "Accordingly, [the Court has]
held that the provisions in Article II of our Constitution entitled
"Declaration of Principles and State Policies" should generally be
construed as mere statements of principles of the State." Justice
Puno, dissenting, Manila Prince Hotel v. GSIS, Id. at 474.
3 I. The grounds:
See Kilosbayan Inc. v. Morato, G.R. No. 118910, 16 November
1995, 250 SCRA 130, 138. Manila Prince Hotel v. GSIS, supra note 2
at 436.
4 and legal qualifications of the office to which they
Kilosbayan, Inc. v. Morato, supra note 2.
5
"A searching inquiry should be made to find out if the provision
is intended as a present enactment, complete in itself as a
definitive law, or if it needs future legislation for completion and
enforcement. The inquiry demands a micro-analysis and the
context of the provision in question." J. Puno, dissenting, Manila
Prince Hotel v. GSIS, supra note 2.
6
J. Bernas, The Intent of the 1986 Constitution Writers (1995), p.
148.
7
IV Records of Proceedings and Debates, 1986 Constitutional
Commission 945.
8
See J. Feliciano, concurring, Oposa v. Factoran, Jr., G.R. No.
101083, 30 July 1993, 224 SCRA 792, 815.
9
Section 69. Nuisance Candidates. The Commission may, motu
to give due course or cancel a certificate of candidacy if it is
shown that said certificate has been filed to put the election
process in mockery or disrepute or to cause confusion among the
voters by the similarity of the names of the registered candidates
or by other circumstances or acts which clearly demonstrate that
the candidate has no bona fide intention to run for the office for
which the certificate of candidacy has been filed and thus prevent
a faithful determination of the true will of the electorate.
10
SEC. 6. Motu Proprio Cases. The Commission may, at any time
before the election, motu proprio refuse to give due course to or
cancel a certificate of candidacy of any candidate for the positions
of President, Vice-President, Senator and Party-list:
a. Candidates who, on the face of their certificate
of candidacy, do not possess the constitutional
aspire to be elected;
b. Candidate who, on the face of said certificate,
filed their certificate of candidacy to put the
election process in mockery or disrepute;
467

c. Candidates whose certificate of candidacy could
cause confusion among the voters by the
similarity of names and surnames with other
candidates; and
17
Sanchez v. COMELEC, 199 Phil. 617 (1987), citing Cauton v.
COMELEC, L-25467, 27 April 1967, 19 SCRA 911.
18
See Section 9, Article IX, Constitution.

d. Candidates who have no bona fide intention to

run for the office for which the certificate of
candidacy had been filed or acts that clearly
demonstrate the lack of such bona fide intention,
such as:

d.1 Candidates who do not belong to or

are not nominated by any registered
political party of national constituency;

d.2 Presidential, Vice-Presidential [candi-

dates] who do not present running mates
for vice-president, respectively, nor
senatorial candidates;

d.3 Candidates who do not have a

platform of government and are not
capable of waging a nationwide campaign.

11
Jenness v. Fortson, 403 U.S. 431 (1971).

12
Rollo, pp. 469.

13
See Section 178, Omnibus Election Code, as amended.

14
See Section 239, Omnibus Election Code, as amended.

15
See Article XI, Omnibus Election Code, as amended.

16
See Section 2(1), Article IX, Constitution.

468
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-72119 May 29, 1987
VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.
CORTES, J.:
The fundamental right of the people to information on matters of public
concern is invoked in this special civil action for mandamus instituted by
petitioner Valentin L. Legaspi against the Civil Service Commission. The
respondent had earlier denied Legaspi's request for information on the
civil service eligibilities of certain persons employed as sanitarians in the
Health Department of Cebu City. These government employees, Julian
Sibonghanoy and Mariano Agas, had allegedly represented themselves as
civil service eligibles who passed the civil service examinations for
sanitarians.
Claiming that his right to be informed of the eligibilities of Julian
Sibonghanoy and Mariano Agas, is guaranteed by the Constitution, and
that he has no other plain, speedy and adequate remedy to acquire the
information, petitioner prays for the issuance of the extraordinary writ of
mandamus to compel the respondent Commission to disclose said
information.
This is not the first tune that the writ of mandamus is sought to enforce
the fundamental right to information. The same remedy was resorted to
in the case of Tanada et. al. vs. Tuvera et. al., (G.R. No. L-63915, April
24,1985,136 SCRA 27) wherein the people's right to be informed under the
1973 Constitution (Article IV, Section 6) was invoked in order to compel
the publication in the Official Gazette of various presidential decrees,
letters of instructions and other presidential issuances. Prior to the
recognition of the right in said Constitution the statutory right to
information provided for in the Land Registration Act (Section 56, Act
496, as amended) was claimed by a newspaper editor in another
mandamus proceeding, this time to demand access to the records of the
Register of Deeds for the purpose of gathering data on real estate
transactions involving aliens (Subido vs. Ozaeta, 80 Phil. 383 [1948]).
The constitutional right to information on matters of public concern first
gained recognition in the Bill of Rights, Article IV, of the 1973 Constitution,
which states:
Sec. 6. The right of the people to information on matters
of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to
official acts, transactions, or decisions, shall be afforded
the citizen subject to such limitations as may be provided
by law.
The foregoing provision has been retained and the right therein provided
amplified in Article III, Sec. 7 of the 1987 Constitution with the addition of
the phrase, "as well as to government research data used as basis for
policy development." The new provision reads:
The right of the people to information on matters of
public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to
government research data used as basis. for policy
development, shall be afforded the citizen, subject to
such stations as may be provided by law.
These constitutional provisions are self-executing. They supply the rules
by means of which the right to information may be enjoyed (Cooley, A
Treatise on the Constitutional Limitations 167 [1927]) by guaranteeing the
right and mandating the duty to afford access to sources of information.
469
Hence, the fundamental right therein recognized may be asserted by the
people upon the ratification of the constitution without need for any
ancillary act of the Legislature. (Id. at, p. 165) What may be provided for
by the Legislature are reasonable conditions and limitations upon the
access to be afforded which must, of necessity, be consistent with the
declared State policy of full public disclosure of all transactions involving
public interest (Constitution, Art. 11, Sec. 28). However, it cannot be
overemphasized that whatever limitation may be prescribed by the
Legislature, the right and the duty under Art. III Sec. 7 have become
operative and enforceable by virtue of the adoption of the New Charter.
Therefore, the right may be properly invoked in a mandamus proceeding
such as this one.
The Solicitor General interposes procedural objections to Our giving due
course to this Petition. He challenges the petitioner's standing to sue
upon the ground that the latter does not possess any clear legal right to
be informed of the civil service eligibilities of the government employees
concerned. He calls attention to the alleged failure of the petitioner to
show his actual interest in securing this particular information. He further
argues that there is no ministerial duty on the part of the Commission to
furnish the petitioner with the information he seeks.
1. To be given due course, a Petition for mandamus must have been
instituted by a party aggrieved by the alleged inaction of any tribunal,
corporation, board or person which unlawfully excludes said party from
the enjoyment of a legal right. (Ant;-Chinese League of the Philippines vs.
Felix, 77 Phil. 1012 [1947]). The petitioner in every case must therefore be
an "aggrieved party" in the sense that he possesses a clear legal right to
be enforced and a direct interest in the duty or act to be performed.
In the case before Us, the respondent takes issue on the personality of
the petitioner to bring this suit. It is asserted that, the instant Petition is
bereft of any allegation of Legaspi's actual interest in the civil service
eligibilities of Julian Sibonghanoy and Mariano Agas, At most there is a
vague reference to an unnamed client in whose behalf he had allegedly
acted when he made inquiries on the subject (Petition, Rollo, p. 3).
But what is clear upon the face of the Petition is that the petitioner has
firmly anchored his case upon the right of the people to information on
matters of public concern, which, by its very nature, is a public right. It
has been held that:
* * * when the question is one of public right and the
object of the mandamus is to procure the enforcement of
a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the
proceedings are instituted need not show that he has any
legal or special interest in the result, it being sufficient to
show that he is a citizen and as such interested in the
execution of the laws * * * (Tanada et. al. vs. Tuvera, et.
al., G.R. No. L- 63915, April 24, 1985, 136 SCRA 27, 36).
From the foregoing, it becomes apparent that when a mandamus
proceeding involves the assertion of a public right, the requirement of
personal interest is satisfied by the mere fact that the petitioner is a
citizen, and therefore, part of the general "public" which possesses the
right.
The Court had opportunity to define the word "public" in the Subido case,
supra, when it held that even those who have no direct or tangible
interest in any real estate transaction are part of the "public" to whom
"(a)ll records relating to registered lands in the Office of the Register of
Deeds shall be open * * *" (Sec. 56, Act No. 496, as amended). In the
words of the Court:
* * * "Public" is a comprehensive, all-inclusive term.
Properly construed, it embraces every person. To say that
only those who have a present and existing interest of a
pecuniary character in the particular information sought
are given the right of inspection is to make an
unwarranted distinction. *** (Subido vs. Ozaeta, supra at
p. 387).
The petitioner, being a citizen who, as such is clothed with personality to
seek redress for the alleged obstruction of the exercise of the public
470
right. We find no cogent reason to deny his standing to bring the present
suit.
2. For every right of the people recognized as fundamental, there lies a
corresponding duty on the part of those who govern, to respect and
protect that right. That is the very essence of the Bill of Rights in a
constitutional regime. Only governments operating under fundamental
rules defining the limits of their power so as to shield individual rights
against its arbitrary exercise can properly claim to be constitutional
(Cooley, supra, at p. 5). Without a government's acceptance of the
limitations imposed upon it by the Constitution in order to uphold
individual liberties, without an acknowledgment on its part of those
duties exacted by the rights pertaining to the citizens, the Bill of Rights
becomes a sophistry, and liberty, the ultimate illusion.
In recognizing the people's right to be informed, both the 1973
Constitution and the New Charter expressly mandate the duty of the
State and its agents to afford access to official records, documents,
papers and in addition, government research data used as basis for policy
development, subject to such limitations as may be provided by law. The
guarantee has been further enhanced in the New Constitution with the
adoption of a policy of full public disclosure, this time "subject to
reasonable conditions prescribed by law," in Article 11, Section 28 thereof,
to wit:
Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.
(Art. 11, Sec. 28).
In the Tanada case, supra, the constitutional guarantee was bolstered by
what this Court declared as an imperative duty of the government
officials concerned to publish all important legislative acts and resolutions
of a public nature as well as all executive orders and proclamations of
general applicability. We granted mandamus in said case, and in the
process, We found occasion to expound briefly on the nature of said
duty:
* * * That duty must be enforced if the Constitutional
right of the people to be informed on matters of public
concern is to be given substance and reality. The law itself
makes a list of what should be published in the Official
Gazette. Such listing, to our mind, leaves respondents
with no discretion whatsoever as to what must be in
included or excluded from such publication. (Tanada v.
Tuvera, supra, at 39). (Emphasis supplied).
The absence of discretion on the part of government agencia es in
allowing the examination of public records, specifically, the records in the
Office of the Register of Deeds, is emphasized in Subido vs. Ozaeta, supra:
Except, perhaps when it is clear that the purpose of the
examination is unlawful, or sheer, idle curiosity, we do not
believe it is the duty under the law of registration officers
to concern themselves with the motives, reasons, and
objects of the person seeking access to the records. It is
not their prerogative to see that the information which
the records contain is not flaunted before public gaze, or
that scandal is not made of it. If it be wrong to publish the
contents of the records, it is the legislature and not the
officials having custody thereof which is called upon to
devise a remedy. *** (Subido v. Ozaeta, supra at 388).
(Emphasis supplied).
It is clear from the foregoing pronouncements of this Court that
government agencies are without discretion in refusing disclosure of, or
access to, information of public concern. This is not to lose sight of the
reasonable regulations which may be imposed by said agencies in custody
of public records on the manner in which the right to information may be
exercised by the public. In the Subido case, We recognized the authority
of the Register of Deeds to regulate the manner in which persons desiring
to do so, may inspect, examine or copy records relating to registered
lands. However, the regulations which the Register of Deeds may
promulgate are confined to:
471
 * * * prescribing the manner and hours of examination to
the end that damage to or loss of, the records may be
avoided, that undue interference with the duties of the
custodian of the books and documents and other
employees may be prevented, that the right of other
persons entitled to make inspection may be insured * * *
(Subido vs. Ozaeta, 80 Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a similar authority
in a municipal judge, to regulate the manner of inspection by the public of
criminal docket records in the case of Baldoza vs. Dimaano (Adm. Matter
No. 1120-MJ, May 5, 1976, 71 SCRA 14). Said administrative case was filed
against the respondent judge for his alleged refusal to allow examination
of the criminal docket records in his sala. Upon a finding by the
Investigating Judge that the respondent had allowed the complainant to
open and view the subject records, We absolved the respondent. In
effect, We have also held that the rules and conditions imposed by him
upon the manner of examining the public records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic in Our
statement that the authority to regulate the manner of examining public
records does not carry with it the power to prohibit. A distinction has to
be made between the discretion to refuse outright the disclosure of or
access to a particular information and the authority to regulate the
manner in which the access is to be afforded. The first is a limitation upon
the availability of access to the information sought, which only the
Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The second
pertains to the government agency charged with the custody of public
records. Its authority to regulate access is to be exercised solely to the
end that damage to, or loss of, public records may be avoided, undue
interference with the duties of said agencies may be prevented, and more
importantly, that the exercise of the same constitutional right by other
persons shall be assured (Subido vs. Ozaetal supra).
Thus, while the manner of examining public records may be subject to
reasonable regulation by the government agency in custody thereof, the
duty to disclose the information of public concern, and to afford access
to public records cannot be discretionary on the part of said agencies.
Certainly, its performance cannot be made contingent upon the
discretion of such agencies. Otherwise, the enjoyment of the
constitutional right may be rendered nugatory by any whimsical exercise
of agency discretion. The constitutional duty, not being discretionary, its
performance may be compelled by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us,
the public right to be enforced and the concomitant duty of the State are
unequivocably set forth in the Constitution. The decisive question on the
propriety of the issuance of the writ of mandamus in this case is, whether
the information sought by the petitioner is within the ambit of the
constitutional guarantee.
3. The incorporation in the Constitution of a guarantee of access to
information of public concern is a recognition of the essentiality of the
free flow of ideas and information in a democracy (Baldoza v. Dimaano,
Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same way that
free discussion enables members of society to cope with the exigencies
of their time (Thornhill vs. Alabama, 310 U.S. 88,102 [1939]), access to
information of general interest aids the people in democratic decision-
making (87 Harvard Law Review 1505 [1974]) by giving them a better
perspective of the vital issues confronting the nation.
But the constitutional guarantee to information on matters of public
concern is not absolute. It does not open every door to any and all
information. Under the Constitution, access to official records, papers,
etc., are "subject to limitations as may be provided by law" (Art. III, Sec. 7,
second sentence). The law may therefore exempt certain types of
information from public scrutiny, such as those affecting national security
(Journal No. 90, September 23, 1986, p. 10; and Journal No. 91, September
24, 1986, p. 32, 1986 Constitutional Commission). It follows that, in every
case, the availability of access to a particular public record must be
circumscribed by the nature of the information sought, i.e., (a) being of
public concern or one that involves public interest, and, (b) not being
exempted by law from the operation of the constitutional guarantee. The
threshold question is, therefore, whether or not the information sought is
of public interest or public concern.
472
a. This question is first addressed to the government agency having
custody of the desired information. However, as already discussed, this
does not give the agency concerned any discretion to grant or deny
access. In case of denial of access, the government agency has the
burden of showing that the information requested is not of public
concern, or, if it is of public concern, that the same has been exempted by
law from the operation of the guarantee. To hold otherwise will serve to
dilute the constitutional right. As aptly observed, ". . . the government is
in an advantageous position to marshall and interpret arguments against
release . . ." (87 Harvard Law Review 1511 [1974]). To safeguard the
constitutional right, every denial of access by the government agency
concerned is subject to review by the courts, and in the proper case,
access may be compelled by a writ of Mandamus.
In determining whether or not a particular information is of public
concern there is no rigid test which can be applied. "Public concern" like
"public interest" is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply because
such matters naturally arouse the interest of an ordinary citizen. In the
final analysis, it is for the courts to determine in a case by case basis
whether the matter at issue is of interest or importance, as it relates to or
affects the public.
The public concern invoked in the case of Tanada v. Tuvera, supra, was the
need for adequate notice to the public of the various laws which are to
regulate the actions and conduct of citizens. In Subido vs. Ozaeta, supra,
the public concern deemed covered by the statutory right was the
knowledge of those real estate transactions which some believed to have
been registered in violation of the Constitution.
The information sought by the petitioner in this case is the truth of the
claim of certain government employees that they are civil service eligibles
for the positions to which they were appointed. The Constitution
expressly declares as a State policy that:
Appointments in the civil service shall be made only
according to merit and fitness to be determined, as far as
practicable, and except as to positions which are policy
determining, primarily confidential or highly technical, by
competitive examination. (Art. IX, B, Sec. 2.[2]).
Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate
concern of citizens to ensure that government positions requiring civil
service eligibility are occupied only by persons who are eligibles. Public
officers are at all times accountable to the people even as to their
eligibilities for their respective positions.
b. But then, it is not enough that the information sought is of public
interest. For mandamus to lie in a given case, the information must not be
among the species exempted by law from the operation of the
constitutional guarantee.
In the instant, case while refusing to confirm or deny the claims of
eligibility, the respondent has failed to cite any provision in the Civil
Service Law which would limit the petitioner's right to know who are, and
who are not, civil service eligibles. We take judicial notice of the fact that
the names of those who pass the civil service examinations, as in bar
examinations and licensure examinations for various professions, are
released to the public. Hence, there is nothing secret about one's civil
service eligibility, if actually possessed. Petitioner's request is, therefore,
neither unusual nor unreasonable. And when, as in this case, the
government employees concerned claim to be civil service eligibles, the
public, through any citizen, has a right to verify their professed eligibilities
from the Civil Service Commission.
The civil service eligibility of a sanitarian being of public concern, and in
the absence of express limitations under the law upon access to the
register of civil service eligibles for said position, the duty of the
respondent Commission to confirm or deny the civil service eligibility of
any person occupying the position becomes imperative. Mandamus,
therefore lies.
WHEREFORE, the Civil Service Commission is ordered to open its register
of eligibles for the position of sanitarian, and to confirm or deny, the civil
service eligibility of Julian Sibonghanoy and Mariano Agas, for said
473
position in the Health Department of Cebu City, as requested by the
petitioner Valentin L. Legaspi.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz,

Paras, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.

Feliciano, J., is on leave.

474
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R No. 187167 August 16, 2011
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA
HONTIVEROS, PROF. HARRY C. ROQUE, JR., AND UNIVERSITY OF THE
PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA ACAS,
VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO,
SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA,
ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI
CAETE, VANN ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY
DUMAN, SHARON ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER,
RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE CECILIA
GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA
MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN
HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV,
CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA
CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA ANNE TORNO,
MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY,
HON. ALBERTO ROMULO, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS
ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE
INFORMATION AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS
CAPACITY AS REPRESENTATIVE OF THE PERMANENT MISSION OF THE
REPUBLIC OF THE PHILIPPINES TO THE UNITED NATIONS, Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 95221 (RA 9522) adjusting the
countrys archipelagic baselines and classifying the baseline regime of
nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating
the maritime baselines of the Philippines as an archipelagic State.3 This
law followed the framing of the Convention on the Territorial Sea and the
Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the
sovereign right of States parties over their "territorial sea," the breadth
of which, however, was left undetermined. Attempts to fill this void
during the second round of negotiations in Geneva in 1960 (UNCLOS II)
proved futile. Thus, domestically, RA 3046 remained unchanged for
nearly five decades, save for legislation passed in 1968 (Republic Act No.
5446 [RA 5446]) correcting typographical errors and reserving the
drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the
statute now under scrutiny. The change was prompted by the need to
make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III),5 which the Philippines
ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the
water-land ratio, length, and contour of baselines of archipelagic States
like the Philippines7 and sets the deadline for the filing of application for
the extended continental shelf.8 Complying with these requirements, RA
9522 shortened one baseline, optimized the location of some basepoints
around the Philippine archipelago and classified adjacent territories,
namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as
"regimes of islands" whose islands generate their own applicable
maritime zones.
Petitioners, professors of law, law students and a legislator, in their
respective capacities as "citizens, taxpayers or x x x legislators,"9 as the
case may be, assail the constitutionality of RA 9522 on two principal
475
grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and
logically, the reach of the Philippine states sovereign power, in violation
of Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty
of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the countrys
waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security,
contravening the countrys nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional provisions.13
In addition, petitioners contend that RA 9522s treatment of the KIG as
"regime of islands" not only results in the loss of a large maritime area
but also prejudices the livelihood of subsistence fishermen.14 To buttress
their argument of territorial diminution, petitioners facially attack RA
9522 for what it excluded and included its failure to reference either the
Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of regime
of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues
questioning (1) the petitions compliance with the case or controversy
requirement for judicial review grounded on petitioners alleged lack of
locus standi and (2) the propriety of the writs of certiorari and prohibition
to assail the constitutionality of RA 9522. On the merits, respondents
defended RA 9522 as the countrys compliance with the terms of UNCLOS
III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the countrys
security, environment and economic interests or relinquish the
Philippines claim over Sabah.
Respondents also question the normative force, under international law,
of petitioners assertion that what Spain ceded to the United States
under the Treaty of Paris were the islands and all the waters found within
the boundaries of the rectangular area drawn under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily
1. Whether petitioners possess locus standi to bring this
suit; and
2. Whether the writs of certiorari and prohibition are the
proper remedies to assail the constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi
to bring this suit as citizens and (2) the writs of certiorari and prohibition
are proper remedies to test the constitutionality of RA 9522. On the
merits, we find no basis to declare RA 9522 unconstitutional.
On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as
legislators and taxpayers because the petition alleges neither
infringement of legislative prerogative15 nor misuse of public funds,16
occasioned by the passage and implementation of RA 9522. Nonetheless,
we recognize petitioners locus standi as citizens with constitutionally
sufficient interest in the resolution of the merits of the case which
undoubtedly raises issues of national significance necessitating urgent
resolution. Indeed, owing to the peculiar nature of RA 9522, it is
understandably difficult to find other litigants possessing "a more direct
and specific interest" to bring the suit, thus satisfying one of the
requirements for granting citizenship standing.17
476
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds,
respondents seek a strict observance of the offices of the writs of
certiorari and prohibition, noting that the writs cannot issue absent any
showing of grave abuse of discretion in the exercise of judicial, quasi-
judicial or ministerial powers on the part of respondents and resulting
prejudice on the part of petitioners.18
Respondents submission holds true in ordinary civil proceedings. When
this Court exercises its constitutional power of judicial review, however,
we have, by tradition, viewed the writs of certiorari and prohibition as
proper remedial vehicles to test the constitutionality of statutes,19 and
indeed, of acts of other branches of government.20 Issues of
constitutional import are sometimes crafted out of statutes which, while
having no bearing on the personal interests of the petitioners, carry such
relevance in the life of this nation that the Court inevitably finds itself
constrained to take cognizance of the case and pass upon the issues
raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large portion of the
national territory"21 because it discards the pre-UNCLOS III demarcation
of Philippine territory under the Treaty of Paris and related treaties,
successively encoded in the definition of national territory under the 1935,
1973 and 1987 Constitutions. Petitioners theorize that this constitutional
definition trumps any treaty or statutory provision denying the
Philippines sovereign control over waters, beyond the territorial sea
recognized at the time of the Treaty of Paris, that Spain supposedly
ceded to the United States. Petitioners argue that from the Treaty of
Paris technical description, Philippine sovereignty over territorial waters
extends hundreds of nautical miles around the Philippine archipelago,
embracing the rectangular area delineated in the Treaty of Paris.22
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It
is a multilateral treaty regulating, among others, sea-use rights over
maritime zones (i.e., the territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles from the baselines],
exclusive economic zone [200 nautical miles from the baselines]), and
continental shelves that UNCLOS III delimits.23 UNCLOS III was the
culmination of decades-long negotiations among United Nations
members to codify norms regulating the conduct of States in the worlds
oceans and submarine areas, recognizing coastal and archipelagic States
graduated authority over a limited span of waters and submarine lands
along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by
UNCLOS III States parties to mark-out specific basepoints along their
coasts from which baselines are drawn, either straight or contoured, to
serve as geographic starting points to measure the breadth of the
maritime zones and continental shelf. Article 48 of UNCLOS III on
archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf.
The breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be measured from
archipelagic baselines drawn in accordance with article 47. (Emphasis
supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS
III States parties to delimit with precision the extent of their maritime
zones and continental shelves. In turn, this gives notice to the rest of the
international community of the scope of the maritime space and
submarine areas within which States parties exercise treaty-based rights,
477
namely, the exercise of sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in
the contiguous zone (Article 33), and the right to exploit the living and
non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).
livelihood of subsistence fishermen.28 A comparison of the configuration
of the baselines drawn under RA 3046 and RA 9522 and the extent of
maritime space encompassed by each law, coupled with a reading of the
text of RA 9522 and its congressional deliberations, vis--vis the
Philippines obligations under UNCLOS III, belie this view.1avvphi1

Even under petitioners theory that the Philippine territory embraces the The configuration of the baselines drawn under RA 3046 and RA 9522
islands and all the waters within the rectangular area delimited in the shows that RA 9522 merely followed the basepoints mapped by RA 3046,
Treaty of Paris, the baselines of the Philippines would still have to be save for at least nine basepoints that RA 9522 skipped to optimize the
drawn in accordance with RA 9522 because this is the only way to draw location of basepoints and adjust the length of one baseline (and thus
the baselines in conformity with UNCLOS III. The baselines cannot be comply with UNCLOS IIIs limitation on the maximum length of baselines).
drawn from the boundaries or other portions of the rectangular area Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie
delineated in the Treaty of Paris, but from the "outermost islands and outside of the baselines drawn around the Philippine archipelago. This
drying reefs of the archipelago."24 undeniable cartographic fact takes the wind out of petitioners argument
branding RA 9522 as a statutory renunciation of the Philippines claim
UNCLOS III and its ancillary baselines laws play no role in the acquisition, over the KIG, assuming that baselines are relevant for this purpose.
enlargement or, as petitioners claim, diminution of territory. Under
traditional international law typology, States acquire (or conversely, lose) Petitioners assertion of loss of "about 15,000 square nautical miles of
territory through occupation, accretion, cession and prescription,25 not by territorial waters" under RA 9522 is similarly unfounded both in fact and
executing multilateral treaties on the regulations of sea-use rights or law. On the contrary, RA 9522, by optimizing the location of basepoints,
enacting statutes to comply with the treatys terms to delimit maritime increased the Philippines total maritime space (covering its internal
zones and continental shelves. Territorial claims to land features are waters, territorial sea and exclusive economic zone) by 145,216 square
outside UNCLOS III, and are instead governed by the rules on general nautical miles, as shown in the table below:29
international law.26
Extent of maritime
RA 9522s Use of the Framework area using RA 3046, Extent of maritime
of Regime of Islands to Determine the as amended, taking area using RA 9522,
Maritime Zones of the KIG and the into account the taking into account
Scarborough Shoal, not Inconsistent Treaty of Paris UNCLOS III (in
with the Philippines Claim of Sovereignty delimitation (in square nautical
Over these Areas square nautical miles)
miles)
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of
islands framework to draw the baselines, and to measure the breadth of Internal or
the applicable maritime zones of the KIG, "weakens our territorial claim" archipelagic
over that area.27 Petitioners add that the KIGs (and Scarborough Shoals) waters 166,858 171,435
exclusion from the Philippine archipelagic baselines results in the loss of Territorial Sea 274,136 32,106
"about 15,000 square nautical miles of territorial waters," prejudicing the
478
 Exclusive
Economic Zone 382,669
TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone
drawn under RA 9522 even extends way beyond the waters covered by
the rectangular demarcation under the Treaty of Paris. Of course, where
there are overlapping exclusive economic zones of opposite or adjacent
States, there will have to be a delineation of maritime boundaries in
accordance with UNCLOS III.30

Further, petitioners argument that the KIG now lies outside Philippine
territory because the baselines that RA 9522 draws do not enclose the
KIG is negated by RA 9522 itself. Section 2 of the law commits to text the

479
Philippines continued claim of sovereignty and jurisdiction over the KIG
and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines
likewise exercises sovereignty and jurisdiction shall be determined as
"Regime of Islands" under the Republic of the Philippines consistent with
Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential
Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis
supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as
part of the Philippine archipelago, adverse legal effects would have
ensued. The Philippines would have committed a breach of two
provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that
"[t]he drawing of such baselines shall not depart to any appreciable
extent from the general configuration of the archipelago." Second,
Article 47 (2) of UNCLOS III requires that "the length of the baselines shall
not exceed 100 nautical miles," save for three per cent (3%) of the total
number of baselines which can reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the
KIG32 and the Scarborough Shoal for several decades, these outlying areas
are located at an appreciable distance from the nearest shoreline of the
Philippine archipelago,33 such that any straight baseline loped around
them from the nearest basepoint will inevitably "depart to an appreciable
extent from the general configuration of the archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-
Santiago, took pains to emphasize the foregoing during the Senate
deliberations:
What we call the Kalayaan Island Group or what the rest of the world
call[] the Spratlys and the Scarborough Shoal are outside our archipelagic
baseline because if we put them inside our baselines we might be accused
of violating the provision of international law which states: "The drawing of
such baseline shall not depart to any appreciable extent from the general
configuration of the archipelago." So sa loob ng ating baseline, dapat
magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi
natin masasabing malapit sila sa atin although we are still allowed by
international law to claim them as our own.
This is called contested islands outside our configuration. We see that our
archipelago is defined by the orange line which [we] call[] archipelagic
baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group
or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin
ang dating archipelagic baselines para lamang masama itong dalawang
circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United
Nations because of the rule that it should follow the natural configuration
of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded
UNCLOS IIIs limits.1avvphi1 The need to shorten this baseline, and in
addition, to optimize the location of basepoints using current maps,
became imperative as discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the
Philippines to draw the outer limits of its maritime zones including the
extended continental shelf in the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the
baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3
Rock Awash to Tongquil Point) is 140.06 nautical miles x x x. This
exceeds the maximum length allowed under Article 47(2) of the
[UNCLOS III], which states that "The length of such baselines shall
not exceed 100 nautical miles, except that up to 3 per cent of the
total number of baselines enclosing any archipelago may exceed
that length, up to a maximum length of 125 nautical miles."
480
 2. The selection of basepoints is not optimal. At least 9 basepoints
can be skipped or deleted from the baselines system. This will
enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968,
and not established by geodetic survey methods. Accordingly,
some of the points, particularly along the west coasts of Luzon
down to Palawan were later found to be located either inland or
on water, not on low-water line and drying reefs as prescribed by
Article 47.35
Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the
Scarborough Shoal as "Regime[s] of Islands under the Republic of the
Philippines consistent with Article 121"36 of UNCLOS III manifests the
Philippine States responsible observance of its pacta sunt servanda
obligation under UNCLOS III. Under Article 121 of UNCLOS III, any
"naturally formed area of land, surrounded by water, which is above
water at high tide," such as portions of the KIG, qualifies under the
category of "regime of islands," whose islands generate their own
applicable maritime zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to
textualize the Philippines claim over Sabah in North Borneo is also
untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps
open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the
Philippine Archipelago as provided in this Act is without prejudice to the
delineation of the baselines of the territorial sea around the territory of
Sabah, situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitutions
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners
contend that the law unconstitutionally "converts" internal waters into
archipelagic waters, hence subjecting these waters to the right of
innocent and sea lanes passage under UNCLOS III, including overflight.
Petitioners extrapolate that these passage rights indubitably expose
Philippine internal waters to nuclear and maritime pollution hazards, in
violation of the Constitution.38
Whether referred to as Philippine "internal waters" under Article I of the
Constitution39 or as "archipelagic waters" under UNCLOS III (Article 49
[1]), the Philippines exercises sovereignty over the body of water lying
landward of the baselines, including the air space over it and the
submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over
archipelagic waters and of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to the waters
enclosed by the archipelagic baselines drawn in accordance with
article 47, described as archipelagic waters, regardless of their
depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic
waters, as well as to their bed and subsoil, and the resources
contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this
Part shall not in other respects affect the status of the
archipelagic waters, including the sea lanes, or the exercise by
the archipelagic State of its sovereignty over such waters and
481
 their air space, bed and subsoil, and the resources contained
therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of
municipal and international law norms subjecting the territorial sea or
archipelagic waters to necessary, if not marginal, burdens in the interest
of maintaining unimpeded, expeditious international navigation,
consistent with the international law principle of freedom of navigation.
Thus, domestically, the political branches of the Philippine government, in
the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate
innocent and sea lanes passage.40 Indeed, bills drawing nautical highways
for sea lanes passage are now pending in Congress.41
In the absence of municipal legislation, international law norms, now
codified in UNCLOS III, operate to grant innocent passage rights over the
territorial sea or archipelagic waters, subject to the treatys limitations
and conditions for their exercise.42 Significantly, the right of innocent
passage is a customary international law,43 thus automatically
incorporated in the corpus of Philippine law.44 No modern State can
validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking
retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject
to both the right of innocent passage and sea lanes passage45 does not
place them in lesser footing vis--vis continental coastal States which are
subject, in their territorial sea, to the right of innocent passage and the
right of transit passage through international straits. The imposition of
these passage rights through archipelagic waters under UNCLOS III was a
concession by archipelagic States, in exchange for their right to claim all
the waters landward of their baselines, regardless of their depth or
distance from the coast, as archipelagic waters subject to their territorial
sovereignty. More importantly, the recognition of archipelagic States
archipelago and the waters enclosed by their baselines as one cohesive
entity prevents the treatment of their islands as separate islands under
UNCLOS III.46 Separate islands generate their own maritime zones,
placing the waters between islands separated by more than 24 nautical
miles beyond the States territorial sovereignty, subjecting these waters
to the rights of other States under UNCLOS III.47
Petitioners invocation of non-executory constitutional provisions in
Article II (Declaration of Principles and State Policies)48 must also fail. Our
present state of jurisprudence considers the provisions in Article II as
mere legislative guides, which, absent enabling legislation, "do not
embody judicially enforceable constitutional rights x x x."49 Article II
provisions serve as guides in formulating and interpreting implementing
legislation, as well as in interpreting executory provisions of the
Constitution. Although Oposa v. Factoran50 treated the right to a healthful
and balanced ecology under Section 16 of Article II as an exception, the
present petition lacks factual basis to substantiate the claimed
constitutional violation. The other provisions petitioners cite, relating to
the protection of marine wealth (Article XII, Section 2, paragraph 251 ) and
subsistence fishermen (Article XIII, Section 752 ), are not violated by RA
9522.
In fact, the demarcation of the baselines enables the Philippines to
delimit its exclusive economic zone, reserving solely to the Philippines the
exploitation of all living and non-living resources within such zone. Such a
maritime delineation binds the international community since the
delineation is in strict observance of UNCLOS III. If the maritime
delineation is contrary to UNCLOS III, the international community will of
course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines.
UNCLOS III creates a sui generis maritime space the exclusive economic
zone in waters previously part of the high seas. UNCLOS III grants new
rights to coastal States to exclusively exploit the resources found within
this zone up to 200 nautical miles.53 UNCLOS III, however, preserves the
traditional freedom of navigation of other States that attached to this
zone beyond the territorial sea before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS
III, Congress was not bound to pass RA 9522.54 We have looked at the
482
relevant provision of UNCLOS III55 and we find petitioners reading
plausible. Nevertheless, the prerogative of choosing this option belongs ARTURO D. BRION DIOSDADO M. PERALTA
to Congress, not to this Court. Moreover, the luxury of choosing this Associate Justice Associate Justice
option comes at a very steep price. Absent an UNCLOS III compliant
baselines law, an archipelagic State like the Philippines will find itself LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO
devoid of internationally acceptable baselines from where the breadth of Associate Justice Associate Justice
its maritime zones and continental shelf is measured. This is recipe for a
two-fronted disaster: first, it sends an open invitation to the seafaring ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.
powers to freely enter and exploit the resources in the waters and Associate Justice Associate Justice
submarine areas around our archipelago; and second, it weakens the
countrys case in any international dispute over Philippine maritime JOSE PORTUGAL PEREZ JOSE C. MENDOZA
space. These are consequences Congress wisely avoided. Associate Justice Associate Justice

The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an MARIA LOURDES P. A. SERENO
internationally-recognized delimitation of the breadth of the Philippines Associate Justice
maritime zones and continental shelf. RA 9522 is therefore a most vital
step on the part of the Philippines in safeguarding its maritime zones, CERTIFICATION
consistent with the Constitution and our national interest.
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
WHEREFORE, we DISMISS the petition. conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.
SO ORDERED.
RENATO C. CORONA
ANTONIO T. CARPIO Chief Justice
Associate Justice

WE CONCUR:
Footnotes
RENATO C. CORONA
1
Chief Justice Entitled "An Act to Amend Certain Provisions of Republic Act No.
3046, as Amended by Republic Act No. 5446, to Define the
Archipelagic Baselines of the Philippines, and for Other
TERESITA J. LEONARDO-DE Purposes."
PRESBITERO J. VELASCO, JR.
CASTRO
Associate Justice
Associate Justice 2
Entitled "An Act to Define the Baselines of the Territorial Sea of
the Philippines."

483
3
The third "Whereas Clause" of RA 3046 expresses the import of
treating the Philippines as an archipelagic State:
"WHEREAS, all the waters around, between, and
connecting the various islands of the Philippine
archipelago, irrespective of their width or dimensions,
have always been considered as necessary appurtenances
of the land territory, forming part of the inland waters of
the Philippines."
4 State shall at the same time give the names of any Commission
One of the four conventions framed during the first United
Nations Convention on the Law of the Sea in Geneva, this treaty,
excluding the Philippines, entered into force on 10 September
1964.
5 for States which became bound by the treaty before 13
UNCLOS III entered into force on 16 November 1994.
6
The Philippines signed the treaty on 10 December 1982.
7
Article 47, paragraphs 1-3, provide:
1. An archipelagic State may draw straight archipelagic
baselines joining the outermost points of the outermost
islands and drying reefs of the archipelago provided that
within such baselines are included the main islands and an
area in which the ratio of the area of the water to the area
of the land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100
nautical miles, except that up to 3 per cent of the total
number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125
nautical miles.
3. The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the
archipelago. (Emphasis supplied)
xxxx
8
UNCLOS III entered into force on 16 November 1994. The
deadline for the filing of application is mandated in Article 4,
Annex II: "Where a coastal State intends to establish, in
accordance with article 76, the outer limits of its continental shelf
beyond 200 nautical miles, it shall submit particulars of such limits
to the Commission along with supporting scientific and technical
data as soon as possible but in any case within 10 years of the
entry into force of this Convention for that State. The coastal
members who have provided it with scientific and technical
advice." (Underscoring supplied)
In a subsequent meeting, the States parties agreed that
May 1999 (such as the Philippines) the ten-year period will
be counted from that date. Thus, RA 9522, which took
effect on 27 March 2009, barely met the deadline.
9
Rollo, p. 34.
10
Which provides: "The national territory comprises the Philippine
archipelago, with all the islands and waters embraced therein,
and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and
aerial domains, including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas. The
waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form
part of the internal waters of the Philippines."
11
Entered into between the Unites States and Spain on 10
December 1898 following the conclusion of the Spanish-American
War. Under the terms of the treaty, Spain ceded to the United
States "the archipelago known as the Philippine Islands" lying
within its technical description.
484
12
The Treaty of Washington, between Spain and the United States
(7 November 1900), transferring to the US the islands of Cagayan,
Sulu, and Sibutu and the US-Great Britain Convention (2 January
1930) demarcating boundary lines between the Philippines and
North Borneo.
13
Article II, Section 7, Section 8, and Section 16.
14
Allegedly in violation of Article XII, Section 2, paragraph 2 and
Article XIII, Section 7 of the Constitution.
15
Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).
16
Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad
v. COMELEC, 165 Phil. 303 (1976).
17
Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899
(2003) citing Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, 5
May 1994, 232 SCRA 110, 155-156 (1995) (Feliciano, J., concurring).
The two other factors are: "the character of funds or assets
involved in the controversy and a clear disregard of constitutional
or statutory prohibition." Id.
18
. Rollo, pp. 144-147.
19
See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617
SCRA 623 (dismissing a petition for certiorari and prohibition
assailing the constitutionality of Republic Act No. 9716, not for the
impropriety of remedy but for lack of merit); Aldaba v. COMELEC,
G.R. No. 188078, 25 January 2010, 611 SCRA 137 (issuing the writ of
prohibition to declare unconstitutional Republic Act No. 9591);
Macalintal v. COMELEC, 453 Phil. 586 (2003) (issuing the writs of
certiorari and prohibition declaring unconstitutional portions of
Republic Act No. 9189).
20
See e.g. Neri v. Senate Committee on Accountability of Public
Officers and Investigations, G.R. No. 180643, 25 March 2008, 549
SCRA 77 (granting a writ of certiorari against the Philippine
Senate and nullifying the Senate contempt order issued against
petitioner).
21
Rollo, p. 31.
22
Respondents state in their Comment that petitioners theory
"has not been accepted or recognized by either the United States
or Spain," the parties to the Treaty of Paris. Respondents add that
"no State is known to have supported this proposition." Rollo, p.
179.
23
UNCLOS III belongs to that larger corpus of international law of
the sea, which petitioner Magallona himself defined as "a body of
treaty rules and customary norms governing the uses of the sea,
the exploitation of its resources, and the exercise of jurisdiction
over maritime regimes. x x x x" (Merlin M. Magallona, Primer on
the Law of the Sea 1 [1997]) (Italicization supplied).
24
Following Article 47 (1) of UNCLOS III which provides:
An archipelagic State may draw straight archipelagic
baselines joining the outermost points of the outermost
islands and drying reefs of the archipelago provided that
within such baselines are included the main islands and an
area in which the ratio of the area of the water to the area
of the land, including atolls, is between 1 to 1 and 9 to 1.
(Emphasis supplied)
25
Under the United Nations Charter, use of force is no longer a
valid means of acquiring territory.
26
The last paragraph of the preamble of UNCLOS III states that
"matters not regulated by this Convention continue to be
governed by the rules and principles of general international law."
27
Rollo, p. 51.
485
28 38
Id. at 51-52, 64-66. Rollo, pp. 56-57, 60-64.

29 39
Based on figures respondents submitted in their Comment (id. Paragraph 2, Section 2, Article XII of the Constitution uses the
at 182). term "archipelagic waters" separately from "territorial sea."
Under UNCLOS III, an archipelagic State may have internal waters
30 such as those enclosed by closing lines across bays and mouths
Under Article 74.
of rivers. See Article 50, UNCLOS III. Moreover, Article 8 (2) of
31
See note 7. UNCLOS III provides: "Where the establishment of a straight
baseline in accordance with the method set forth in article 7 has
32
Presidential Decree No. 1596 classifies the KIG as a municipality the effect of enclosing as internal waters areas which had not
of Palawan. previously been considered as such, a right of innocent passage
as provided in this Convention shall exist in those waters."
33
KIG lies around 80 nautical miles west of Palawan while (Emphasis supplied)
Scarborough Shoal is around 123 nautical west of Zambales.
40
Mandated under Articles 52 and 53 of UNCLOS III:
34
Journal, Senate 14th Congress 44th Session 1416 (27 January
2009). Article 52. Right of innocent passage.

35
Rollo, p. 159.
36
Section 2, RA 9522.
37
Article 121 provides: "Regime of islands.
1. An island is a naturally formed area of land, surrounded
by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial
sea, the contiguous zone, the exclusive economic zone
and the continental shelf of an island are determined in
accordance with the provisions of this Convention
applicable to other land territory.
Article 53. Right of archipelagic sea lanes passage.
3. Rocks which cannot sustain human habitation or
economic life of their own shall have no exclusive
economic zone or continental shelf."
1. Subject to article 53 and without prejudice to
article 50, ships of all States enjoy the right of
innocent passage through archipelagic waters, in
accordance with Part II, section 3.
2. The archipelagic State may, without
discrimination in form or in fact among foreign
ships, suspend temporarily in specified areas of its
archipelagic waters the innocent passage of
foreign ships if such suspension is essential for the
protection of its security. Such suspension shall
take effect only after having been duly published.
(Emphasis supplied)
1. An archipelagic State may designate sea lanes
and air routes thereabove, suitable for the
continuous and expeditious passage of foreign

486
ships and aircraft through or over its archipelagic
waters and the adjacent territorial sea.
2. All ships and aircraft enjoy the right of
archipelagic sea lanes passage in such sea lanes
and air routes.
3. Archipelagic sea lanes passage means the
exercise in accordance with this Convention of the
rights of navigation and overflight in the normal
mode solely for the purpose of continuous,
expeditious and unobstructed transit between
one part of the high seas or an exclusive economic
zone and another part of the high seas or an
exclusive economic zone.
4. Such sea lanes and air routes shall traverse the
archipelagic waters and the adjacent territorial
sea and shall include all normal passage routes
used as routes for international navigation or
overflight through or over archipelagic waters
and, within such routes, so far as ships are
concerned, all normal navigational channels,
provided that duplication of routes of similar
convenience between the same entry and exit
points shall not be necessary.
5. Such sea lanes and air routes shall be defined by
a series of continuous axis lines from the entry
points of passage routes to the exit points. Ships
and aircraft in archipelagic sea lanes passage shall
not deviate more than 25 nautical miles to either
side of such axis lines during passage, provided
that such ships and aircraft shall not navigate
closer to the coasts than 10 per cent of the
distance between the nearest points on islands
bordering the sea lane.
6. An archipelagic State which designates sea
lanes under this article may also prescribe traffic
separation schemes for the safe passage of ships
through narrow channels in such sea lanes.
7. An archipelagic State may, when circumstances
require, after giving due publicity thereto,
substitute other sea lanes or traffic separation
schemes for any sea lanes or traffic separation
schemes previously designated or prescribed by it.
8. Such sea lanes and traffic separation schemes
shall conform to generally accepted international
regulations.
9. In designating or substituting sea lanes or
prescribing or substituting traffic separation
schemes, an archipelagic State shall refer
proposals to the competent international
organization with a view to their adoption. The
organization may adopt only such sea lanes and
traffic separation schemes as may be agreed with
the archipelagic State, after which the
archipelagic State may designate, prescribe or
substitute them.
10. The archipelagic State shall clearly indicate the
axis of the sea lanes and the traffic separation
schemes designated or prescribed by it on charts
to which due publicity shall be given.
11. Ships in archipelagic sea lanes passage shall
respect applicable sea lanes and traffic separation
schemes established in accordance with this
article.
487
 12. If an archipelagic State does not designate sea
lanes or air routes, the right of archipelagic sea
lanes passage may be exercised through the
routes normally used for international navigation.
(Emphasis supplied)
41
Namely, House Bill No. 4153 and Senate Bill No. 2738, identically
titled "AN ACT TO ESTABLISH THE ARCHIPELAGIC SEA LANES IN
THE PHILIPPINE ARCHIPELAGIC WATERS, PRESCRIBING THE
RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND AIRCRAFTS
EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE
THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND
PROVIDING FOR THE ASSOCIATED PROTECTIVE MEASURES
THEREIN."
42
The relevant provision of UNCLOS III provides:
Article 17. Right of innocent passage.
Subject to this Convention, ships of all States, whether
coastal or land-locked, enjoy the right of innocent
passage through the territorial sea. (Emphasis supplied)
Article 19. Meaning of innocent passage.
1. Passage is innocent so long as it is not
prejudicial to the peace, good order or security of
the coastal State. Such passage shall take place in
conformity with this Convention and with other
rules of international law.
2. Passage of a foreign ship shall be considered to
be prejudicial to the peace, good order or security
of the coastal State if in the territorial sea it
engages in any of the following activities:
(a) any threat or use of force against the
sovereignty, territorial integrity or political
independence of the coastal State, or in
any other manner in violation of the
principles of international law embodied in
the Charter of the United Nations;
(b) any exercise or practice with weapons
of any kind;
(c) any act aimed at collecting information
to the prejudice of the defence or security
of the coastal State;
(d) any act of propaganda aimed at
affecting the defence or security of the
coastal State;
(e) the launching, landing or taking on
board of any aircraft;
(f) the launching, landing or taking on
board of any military device;
(g) the loading or unloading of any
commodity, currency or person contrary
to the customs, fiscal, immigration or
sanitary laws and regulations of the
coastal State;
(h) any act of willful and serious pollution
contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey
activities;
488
 (k) any act aimed at interfering with any
systems of communication or any other
facilities or installations of the coastal
State;
(l) any other activity not having a direct
bearing on passage
Article 21. Laws and regulations of the coastal State
relating to innocent passage.
1. The coastal State may adopt laws and
regulations, in conformity with the provisions of
this Convention and other rules of international
law, relating to innocent passage through the
territorial sea, in respect of all or any of the
following:
(a) the safety of navigation and the
regulation of maritime traffic;
(b) the protection of navigational aids and
facilities and other facilities or
installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living
resources of the sea;
(e) the prevention of infringement of the
fisheries laws and regulations of the
coastal State;
(f) the preservation of the environment of
the coastal State and the prevention,
reduction and control of pollution thereof;
(g) marine scientific research and
hydrographic surveys;
(h) the prevention of infringement of the
customs, fiscal, immigration or sanitary
laws and regulations of the coastal State.
2. Such laws and regulations shall not apply to the
design, construction, manning or equipment of
foreign ships unless they are giving effect to
generally accepted international rules or
standards.
3. The coastal State shall give due publicity to all
such laws and regulations.
4. Foreign ships exercising the right of innocent
passage through the territorial sea shall comply
with all such laws and regulations and all generally
accepted international regulations relating to the
prevention of collisions at sea.
43
The right of innocent passage through the territorial sea applies
only to ships and not to aircrafts (Article 17, UNCLOS III). The right
of innocent passage of aircrafts through the sovereign territory of
a State arises only under an international agreement. In contrast,
the right of innocent passage through archipelagic waters applies
to both ships and aircrafts (Article 53 (12), UNCLOS III).
44
Following Section 2, Article II of the Constitution: "Section 2.
The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all
nations." (Emphasis supplied)
489
45
"Archipelagic sea lanes passage is essentially the same as
transit passage through straits" to which the territorial sea of
continental coastal State is subject. R.R. Churabill and A.V. Lowe,
The Law of the Sea 127 (1999).
46
Falling under Article 121 of UNCLOS III (see note 37).
47
Within the exclusive economic zone, other States enjoy the
following rights under UNCLOS III:
Article 58. Rights and duties of other States in the
exclusive economic zone.
1. In the exclusive economic zone, all States,
whether coastal or land-locked, enjoy, subject to
the relevant provisions of this Convention, the
freedoms referred to in article 87 of navigation
and overflight and of the laying of submarine
cables and pipelines, and other internationally
lawful uses of the sea related to these freedoms,
such as those associated with the operation of
ships, aircraft and submarine cables and pipelines,
and compatible with the other provisions of this
Convention.
2. Articles 88 to 115 and other pertinent rules of
international law apply to the exclusive economic
zone in so far as they are not incompatible with
this Part.
xxxx
Beyond the exclusive economic zone, other States enjoy
the freedom of the high seas, defined under UNCLOS III as
follows:
Article 87. Freedom of the high seas.
1. The high seas are open to all States, whether
coastal or land-locked. Freedom of the high seas is
exercised under the conditions laid down by this
Convention and by other rules of international
law. It comprises, inter alia, both for coastal and
land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and
pipelines, subject to Part VI;
(d) freedom to construct artificial islands
and other installations permitted under
international law, subject to Part VI;
(e) freedom of fishing, subject to the
conditions laid down in section 2;
(f) freedom of scientific research, subject
to Parts VI and XIII.
2. These freedoms shall be exercised by all States
with due regard for the interests of other States in
their exercise of the freedom of the high seas, and
also with due regard for the rights under this
Convention with respect to activities in the Area.
48
See note 13.
49
Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Taada v.
Angara, 338 Phil. 546, 580-581 (1997).
50
G.R. No. 101083, 30 July 1993, 224 SCRA 792.
490
 51
"The State shall protect the nations marine wealth in its
archipelagic waters, territorial sea, and exclusive economic zone,
and reserve its use and enjoyment exclusively to Filipino citizens."
52
"The State shall protect the rights of subsistence fishermen,
especially of local communities, to the preferential use of the
communal marine and fishing resources, both inland and
offshore. It shall provide support to such fishermen through
appropriate technology and research, adequate financial,
production, and marketing assistance, and other services. The
State shall also protect, develop, and conserve such resources.
The protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion. Fishworkers shall
receive a just share from their labor in the utilization of marine
and fishing resources."
53
This can extend up to 350 nautical miles if the coastal State
proves its right to claim an extended continental shelf (see
UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in relation to
Article 77).
54
Rollo, pp. 67-69.
55
Article 47 (1) provides: "An archipelagic State may draw straight
archipelagic baselines joining the outermost points of the
outermost islands and drying reefs of the archipelago provided
that within such baselines are included the main islands and an
area in which the ratio of the area of the water to the area of the
land, including atolls, is between 1 to 1 and 9 to 1." (Emphasis
supplied) in the Area.
The Lawphil Project - Arellano Law Foundation
CONCURRING OPINION
VELASCO, JR., J.:
I concur with the ponencia and add the following complementary
arguments and observations:
A statute is a product of hard work and earnest studies of Congress to
ensure that no constitutional provision, prescription or concept is
infringed. Withal, before a law, in an appropriate proceeding, is nullified,
an unequivocal breach of, or a clear conflict with, the Constitution must
be demonstrated in such a way as to leave no doubt in the mind of the
Court.1 In the same token, if a law runs directly afoul of the Constitution,
the Courts duty on the matter should be clear and simple: Pursuant to its
judicial power and as final arbiter of all legal questions,2 it should strike
such law down, however laudable its purpose/s might be and regardless
of the deleterious effect such action may carry in its wake.
Challenged in these proceedings is the constitutionality of Republic Act
(RA 9522) entitled "An Act to Amend Certain Provisions of [RA] 3046, as
Amended by [RA] 5446 to Define the Archipelagic Baselines Of The
Philippines and for Other Purposes." For perspective, RA 3046, "An Act to
Define the Baselines of the Territorial Sea of the Philippines, was enacted
in 1961 to comply with the United Nations Convention on the Law of the
Sea (UNCLOS) I. Eight years later, RA 5446 was enacted to amend
typographical errors relating to coordinates in RA 3046. The latter law
also added a provision asserting Philippine sovereignty over Sabah.
As its title suggests, RA 9522 delineates archipelagic baselines of the
country, amending in the process the old baselines law, RA 3046.
Everybody is agreed that RA 9522 was enacted in response to the
countrys commitment to conform to some 1982 Law of the Sea
Convention (LOSC) or UNCLOS III provisions to define new archipelagic
baselines through legislation, the Philippines having signed3 and
eventually ratified4 this multilateral treaty. The Court can take judicial
notice that RA 9522 was registered and deposited with the UN on April 4,
2009.
As indicated in its Preamble,5 1982 LOSC aims, among other things, to
establish, with due regard for the sovereignty of all States, "a legal order
491
for the seas and oceans which will facilitate international communication,
and will promote the peaceful uses of the seas and oceans." One of the
measures to attain the order adverted to is to have a rule on baselines. Of
particular relevance to the Philippines, as an archipelagic state, is Article
47 of UNCLOS III which deals with baselines:
1. An archipelagic State may draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying
reefs of the archipelago provided that within such baselines are
included the main islands and an area in which the ratio of the
area of the water to the area of the land, including atolls, is
between 1 to 1 and 9 to 1.
2. The length of such baseline shall not exceed 100 nautical miles,
except that up to 3 per cent of the total number of baselines
enclosing any archipelago may exceed that length, up to a
maximum length of 125 nautical miles.
3. The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the
archipelago.
xxxx
9. The archipelagic State shall give due publicity to such charts or
lists of geographical co-ordinates and shall deposit a copy of each
such chart or list with the Secretary-General of the United
Nations.6 (Emphasis added.)
To obviate, however, the possibility that certain UNCLOS III baseline
provisions would, in their implementation, undermine its sovereign
and/or jurisdictional interests over what it considers its territory,7 the
Philippines, when it signed UNCLOS III on December 10, 1982, made the
following "Declaration" to said treaty:
The Government of the Republic of the Philippines [GRP] hereby
manifests that in signing the 1982 United Nations Convention on the Law
of the Sea, it does so with the understandings embodied in this
declaration, made under the provisions of Article 310 of the Convention,
to wit:
The signing of the Convention by the [GRP] shall not in any manner impair
or prejudice the sovereign rights of the [RP] under and arising from the
Constitution of the Philippines;
Such signing shall not in any manner affect the sovereign rights of the
[RP] as successor of the United States of America [USA], under and
arising out of the Treaty of Paris between Spain and the United States of
America of December 10, 1898, and the Treaty of Washington between
the [USA] and Great Britain of January 2, 1930;
xxxx
Such signing shall not in any manner impair or prejudice the sovereignty
of the [RP] over any territory over which it exercises sovereign authority,
such as the Kalayaan Islands, and the waters appurtenant thereto;
The Convention shall not be construed as amending in any manner any
pertinent laws and Presidential Decrees or Proclamations of the Republic
of the Philippines. The [GRP] maintains and reserves the right and
authority to make any amendments to such laws, decrees or
proclamations pursuant to the provisions of the Philippine Constitution;
The provisions of the Convention on archipelagic passage through sea
lanes do not nullify or impair the sovereignty of the Philippines as an
archipelagic state over the sea lanes and do not deprive it of authority to
enact legislation to protect its sovereignty independence and security;
The concept of archipelagic waters is similar to the concept of internal
waters under the Constitution of the Philippines, and removes straits
connecting these waters with the economic zone or high sea from the
rights of foreign vessels to transit passage for international navigation.8
(Emphasis added.)
492
Petitioners challenge the constitutionality of RA 9522 on the principal
ground that the law violates Section 1, Article I of the 1987 Constitution
on national territory which states:
Section 1. The national territory comprises the Philippine archipelago,
with all the islands and waters embraced therein, and all other territories
over which the Philippines has sovereignty or jurisdiction, consisting of its
terrestrial, fluvial and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other submarine areas. The
waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal
waters of the Philippines. (Emphasis supplied.)
According to Fr. Joaquin Bernas, S.J., himself a member of the 1986
Constitutional Commission which drafted the 1987 Constitution, the
aforequoted Section 1 on national territory was "in substance a copy of its
1973 counterpart."9 Art. I of the 1973 Constitution reads:
Section 1. The national territory comprises the Philippine archipelago,
with all the islands and waters embraced therein, and all other territories
belonging to the Philippines by historic right or legal title, including the
territorial sea, the air space, the subsoil, the insular shelves, and other
submarine areas over which the Philippines has sovereignty or
jurisdiction. The waters around, between, and connecting the islands of
the archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines. (Emphasis added.)
As may be noted both constitutions speak of the "Philippine
archipelago," and, via the last sentence of their respective provisions,
assert the countrys adherence to the "archipelagic principle." Both
constitutions divide the national territory into two main groups: (1) the
Philippine archipelago and (2) other territories belonging to the
Philippines. So what or where is Philippine archipelago contemplated in
the 1973 and 1987 Constitutions then? Fr. Bernas answers the poser in the
following wise:
Article I of the 1987 Constitution cannot be fully understood without
reference to Article I of the 1973 Constitution. x x x
xxxx
x x x To understand [the meaning of national territory as comprising the
Philippine archipelago], one must look into the evolution of [Art. I of the
1973 Constitution] from its first draft to its final form.
Section 1 of the first draft submitted by the Committee on National
Territory almost literally reproduced Article I of the 1935 Constitution x x
x. Unlike the 1935 version, however, the draft designated the Philippines
not simply as the Philippines but as "the Philippine archipelago.10 In
response to the criticism that the definition was colonial in tone x x x, the
second draft further designated the Philippine archipelago, as the historic
home of the Filipino people from its beginning.11
After debates x x x, the Committee reported out a final draft, which
became the initially approved version: "The national territory consists of
the Philippine archipelago which is the ancestral home of the Filipino
people and which is composed of all the islands and waters embraced
therein"
What was the intent behind the designation of the Philippines as an
"archipelago"? x x x Asked by Delegate Roselller Lim (Zamboanga) where
this archipelago was, Committee Chairman Quintero answered that it was
the area delineated in the Treaty of Paris. He said that objections to the
colonial implication of mentioning the Treaty of Paris was responsible for
the omission of the express mention of the Treaty of Paris.
Report No. 01 of the Committee on National Territory had in fact been
explicit in its delineation of the expanse of this archipelago. It said:
Now if we plot on a map the boundaries of this archipelago as set forth in
the Treaty of Paris, a huge or giant rectangle will emerge, measuring
about 600 miles in width and 1,200 miles in length. Inside this giant
rectangle are the 7,100 islands comprising the Philippine Islands. From the
east coast of Luzon to the eastern boundary of this huge rectangle in the
Pacific Ocean, there is a distance of over 300 miles. From the west coast
493
of Luzon to the western boundary of this giant rectangle in the China sea,
there is a distance of over 150 miles.
When the [US] Government enacted the Jones Law, the Hare-Hawes
Cutting Law and the Tydings McDuffie Law, it in reality announced to the
whole world that it was turning over to the Government of the Philippine
Islands an archipelago (that is a big body of water studded with islands),
the boundaries of which archipelago are set forth in Article III of the
Treaty of Paris. It also announced to the whole world that the waters
inside the giant rectangle belong to the Philippines that they are not
part of the high seas.
When Spain signed the Treaty of Paris, in effect she announced to the
whole world that she was ceding to the [US] the Philippine archipelago x
x x, that this archipelago was bounded by lines specified in the treaty, and
that the archipelago consisted of the huge body of water inside the
boundaries and the islands inside said boundaries.
The delineation of the extent of the Philippine archipelago must be
understood in the context of the modifications made both by the Treaty
of Washington of November 7, 1900, and of the Convention of January 12,
1930, in order to include the Islands of Sibutu and of Cagayan de Sulu and
the Turtle and Mangsee Islands. However, x x x the definition of the
archipelago did not include the Batanes group[, being] outside the
boundaries of the Philippine archipelago as set forth in the Treaty of
Paris. In literal terms, therefore, the Batanes islands would come not
under the Philippine archipelago but under the phrase "all other
territories belong to the Philippines."12 x x x (Emphasis added.)
From the foregoing discussions on the deliberations of the provisions on
national territory, the following conclusion is abundantly evident: the
"Philippine archipelago" of the 1987 Constitution is the same "Philippine
archipelago" referred to in Art. I of the 1973 Constitution which in turn
corresponds to the territory defined and described in Art. 1 of the 1935
Constitution,13 which pertinently reads:
Section 1. The Philippines comprises all the territory ceded to the [US] by
the Treaty of Paris concluded between the [US] and Spain on the tenth
day of December, [1898], the limits of which are set forth in Article III of
said treaty, together with all the islands in the treaty concluded at
Washington, between the [US] and Spain on November [7, 1900] and the
treaty concluded between the [US] and Great Britain x x x.
While the Treaty of Paris is not mentioned in both the 1973 and 1987
Constitutions, its mention, so the nationalistic arguments went, being "a
repulsive reminder of the indignity of our colonial past,"14 it is at once
clear that the Treaty of Paris had been utilized as key reference point in
the definition of the national territory.
On the other hand, the phrase "all other territories over which the
Philippines has sovereignty or jurisdiction," found in the 1987
Constitution, which replaced the deleted phrase "all territories belonging
to the Philippines by historic right or legal title"15 found in the 1973
Constitution, covers areas linked to the Philippines with varying degrees
of certainty.16 Under this category would fall: (a) Batanes, which then 1971
Convention Delegate Eduardo Quintero, Chairperson of the Committee
on National Territory, described as belonging to the Philippines in all its
history;17 (b) Sabah, over which a formal claim had been filed, the so-
called Freedomland (a group of islands known as Spratleys); and (c) any
other territory, over which the Philippines had filed a claim or might
acquire in the future through recognized modes of acquiring territory.18
As an author puts it, the deletion of the words "by historic right or legal
title" is not to be interpreted as precluding future claims to areas over
which the Philippines does not actually exercise sovereignty.19
Upon the foregoing perspective and going into specifics, petitioners
would have RA 9522 stricken down as unconstitutional for the reasons
that it deprives the Philippines of what has long been established as part
and parcel of its national territory under the Treaty of Paris, as
supplemented by the aforementioned 1900 Treaty of Washington or, to
the same effect, revises the definition on or dismembers the national
territory. Pushing their case, petitioners argue that the constitutional
definition of the national territory cannot be remade by a mere statutory
act.20 As another point, petitioners parlay the theory that the law in
question virtually weakens the countrys territorial claim over the
Kalayaan Island Group (KIG) and Sabah, both of which come under the
494
category of "other territories" over the Philippines has sovereignty or
jurisdiction. Petitioners would also assail the law on grounds related to
territorial sea lanes and internal waters transit passage by foreign vessels.
It is remarkable that petitioners could seriously argue that RA 9522
revises the Philippine territory as defined in the Constitution, or worse,
constitutes an abdication of territory.
It cannot be over-emphasized enough that RA 9522 is a baseline law
enacted to implement the 1982 LOSC, which in turn seeks to regulate and
establish an orderly sea use rights over maritime zones. Or as the
ponencia aptly states, RA 9522 aims to mark-out specific base points
along the Philippine coast from which baselines are drawn to serve as
starting points to measure the breadth of the territorial sea and maritime
zones.21 The baselines are set to define the sea limits of a state, be it
coastal or archipelagic, under the UNCLOS III regime. By setting the
baselines to conform to the prescriptions of UNCLOS III, RA 9522 did not
surrender any territory, as petitioners would insist at every turn, for
UNCLOS III is concerned with setting order in the exercise of sea-use
rights, not the acquisition or cession of territory. And let it be noted that
under UNCLOS III, it is recognized that countries can have territories
outside their baselines. Far from having a dismembering effect, then, RA
9522 has in a limited but real sense increased the countrys maritime
boundaries. How this situation comes about was extensively explained by
then Minister of State and head of the Philippine delegation to UNCLOS
III Arturo Tolentino in his sponsorship speech22 on the concurrence of the
Batasang Pambansa with the LOSC:
xxxx
Then, we should consider, Mr. Speaker, that under the archipelagic
principle, the whole area inside the archipelagic base lines become a
unified whole and the waters between the islands which formerly were
regarded by international law as open or international seas now become
waters under the complete sovereignty of the Filipino people. In this light
there would be an additional area of 141,800 square nautical miles inside
the base lines that will be recognized by international law as Philippine
waters, equivalent to 45,351,050 hectares. These gains in the waters of
the sea, 45,211,225 hectares outside the base lines and 141,531,000
hectares inside the base lines, total 93,742,275 hectares as a total gain in
the waters under Philippine jurisdiction.
From a pragmatic standpoint, therefore, the advantage to our country
and people not only in terms of the legal unification of land and waters of
the archipelago in the light of international law, but also in terms of the
vast resources that will come under the dominion and jurisdiction of the
Republic of the Philippines, your Committee on Foreign Affairs does not
hesitate to ask this august Body to concur in the Convention by approving
the resolution before us today.
May I say it was the unanimous view of delegations at the Conference on
the Law of the Sea that archipelagos are among the biggest gainers or
beneficiaries under the Convention on the Law of the Sea.
Lest it be overlooked, the constitutional provision on national territory, as
couched, is broad enough to encompass RA 9522s definition of the
archipelagic baselines. To reiterate, the laying down of baselines is not a
mode of acquiring or asserting ownership a territory over which a state
exercises sovereignty. They are drawn for the purpose of defining or
establishing the maritime areas over which a state can exercise sovereign
rights. Baselines are used for fixing starting point from which the
territorial belt is measured seawards or from which the adjacent maritime
waters are measured. Thus, the territorial sea, a marginal belt of maritime
waters, is measured from the baselines extending twelve (12) nautical
miles outward.23 Similarly, Art. 57 of the 1982 LOSC provides that the
Exclusive Economic Zone (EEZ) "shall not extend beyond 200 nautical
miles from the baselines from which the breadth of the territorial sea is
measured."24 Most important to note is that the baselines indicated
under RA 9522 are derived from Art. 47 of the 1982 LOSC which was
earlier quoted.
Since the 1987 Constitutions definition of national territory does not
delimit where the Philippines baselines are located, it is up to the political
branches of the government to supply the deficiency. Through Congress,
the Philippines has taken an official position regarding its baselines to the
international community through RA 3046,25 as amended by RA 544626
495
and RA 9522. When the Philippines deposited a copy of RA 9522 with the
UN Secretary General, we effectively complied in good faith with our
obligation under the 1982 LOSC. A declaration by the Court of the
constitutionality of the law will complete the bona fides of the Philippines
vis-a-vis the law of the sea treaty.
It may be that baseline provisions of UNCLOS III, if strictly implemented,
may have an imposing impact on the signatory states jurisdiction and
even their sovereignty. But this actuality, without more, can hardly
provide a justifying dimension to nullify the complying RA 9522. As held
by the Court in Bayan Muna v. Romulo,27 treaties and international
agreements have a limiting effect on the otherwise encompassing and
absolute nature of sovereignty. By their voluntary acts, states may decide
to surrender or waive some aspects of their sovereignty. The usual
underlying consideration in this partial surrender may be the greater
benefits derived from a pact or reciprocal undertaking. On the premise
that the Philippines has adopted the generally accepted principles of
international law as part of the law of the land, a portion of sovereignty
may be waived without violating the Constitution.
As a signatory of the 1982 LOSC, it behooves the Philippines to honor its
obligations thereunder. Pacta sunt servanda, a basic international law
postulate that "every treaty in force is binding upon the parties to it and
must be performed by them in good faith."28 The exacting imperative of
this principle is such that a state may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty."29
The allegation that Sabah has been surrendered by virtue of RA 9522,
which supposedly repealed the hereunder provision of RA 5446, is
likewise unfounded.
Section 2. The definition of the baselines of the territorial sea of the
Philippine Archipelago as provided in this Act is without prejudice to the
delineation of the baselines of the territorial sea around the territory of
Sabah, situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty.
There is nothing in RA 9522 indicating a clear intention to supersede Sec.
2 of RA 5446. Petitioners obviously have read too much into RA 9522s
amendment on the baselines found in an older law. Aside from setting
the countrys baselines, RA 9522 is, in its Sec. 3, quite explicit in its
reiteration of the Philippines exercise of sovereignty, thus:
Section 3. This Act affirms that the Republic of the Philippines has
dominion, sovereignty and jurisdiction over all portions of the national
territory as defined in the Constitution and by provisions of applicable
laws including, without limitation, Republic Act No. 7160, otherwise
known as the Local Government Code of 1991, as amended.
To emphasize, baselines are used to measure the breadth of the
territorial sea, the contiguous zone, the exclusive economic zone and the
continental shelf. Having KIG and the Scarborough Shoal outside
Philippine baselines will not diminish our sovereignty over these areas.
Art. 46 of UNCLOS III in fact recognizes that an archipelagic state, such as
the Philippines, is a state "constituted wholly by one or more
archipelagos and may include other islands." (emphasis supplied) The
"other islands" referred to in Art. 46 are doubtless islands not forming
part of the archipelago but are nevertheless part of the states territory.
The Philippines sovereignty over KIG and Scarborough Shoal are, thus, in
no way diminished. Consider: Other countries such as Malaysia and the
United States have territories that are located outside its baselines, yet
there is no territorial question arising from this arrangement. 30
It may well be apropos to point out that the Senate version of the
baseline bill that would become RA 9522 contained the following
explanatory note: The law "reiterates our sovereignty over the Kalayaan
Group of Islands declared as part of the Philippine territory under
Presidential Decree No. 1596. As part of the Philippine territory, they shall
be considered as a regime of islands under Article 121 of the
Convention."31 Thus, instead of being in the nature of a "treasonous
surrender" that petitioners have described it to be, RA 9522 even
harmonizes our baseline laws with our international agreements, without
limiting our territory to those confined within the countrys baselines.
496
Contrary to petitioners contention, the classification of KIG and the
Scarborough Shoal as falling under the Philippines regime of islands is
not constitutionally objectionable. Such a classification serves as
compliance with LOSC and the Philippines assertion of sovereignty over
KIG and Scarborough Shoal. In setting the baseline in KIG and
Scarborough Shoal, RA 9522 states that these are areas "over which the
Philippines likewise exercises sovereignty and jurisdiction." It is, thus, not
correct for petitioners to claim that the Philippines has lost 15,000 square
nautical miles of territorial waters upon making this classification. Having
15,000 square nautical miles of Philippine waters outside of our baselines,
to reiterate, does not translate to a surrender of these waters. The
Philippines maintains its assertion of ownership over territories outside of
its baselines. Even China views RA 9522 as an assertion of ownership, as
seen in its Protest32 filed with the UN Secretary-General upon the deposit
of RA 9522.
We take judicial notice of the effective occupation of KIG by the
Philippines. Petitioners even point out that national and local elections
are regularly held there. The classification of KIG as under a "regime of
islands" does not in any manner affect the Philippines consistent position
with regard to sovereignty over KIG. It does not affect the Philippines
other acts of ownership such as occupation or amend Presidential Decree
No. 1596, which declared KIG as a municipality of Palawan.
The fact that the baselines of KIG and Scarborough Shoal have yet to be
defined would not detract to the constitutionality of the law in question.
The resolution of the problem lies with the political departments of the
government.
All told, the concerns raised by the petitioners about the diminution or
the virtual dismemberment of the Philippine territory by the enactment
of RA 9522 are, to me, not well grounded. To repeat, UNCLOS III pertains
to a law on the seas, not territory. As part of its Preamble,33 LOSC
recognizes "the desirability of establishing through this Convention, with
due regard for the sovereignty of all States, a legal order for the seas and
oceans x x x."
This brings me to the matter of transit passage of foreign vessels through
Philippine waters.
Apropos thereto, petitioners allege that RA 9522 violates the nuclear
weapons-free policy under Sec. 8, in relation to Sec. 16, Art. II of the
Constitution, and exposes the Philippines to marine pollution hazards,
since under the LOSC the Philippines supposedly must give to ships of all
states the right of innocent passage and the right of archipelagic sea-lane
passage.
The adverted Sec. 8, Art. II of the 1987 Constitution declares the adoption
and pursuit by the Philippines of "a policy of freedom from nuclear
weapons in its territory." On the other hand, the succeeding Sec. l6
underscores the States firm commitment "to protect and advance the
right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature." Following the allegations of petitioners,
these twin provisions will supposedly be violated inasmuch as RA 9522
accedes to the right of innocent passage and the right of archipelagic sea-
lane passage provided under the LOSC. Therefore, ships of all nations
be they nuclear-carrying warships or neutral commercial vessels
transporting goodscan assert the right to traverse the waters within
our islands.
A cursory reading of RA 9522 would belie petitioners posture. In context,
RA 9522 simply seeks to conform to our international agreement on the
setting of baselines and provides nothing about the designation of
archipelagic sea-lane passage or the regulation of innocent passage
within our waters. Again, petitioners have read into the amendatory RA
9522 something not intended.
Indeed, the 1982 LOSC enumerates the rights and obligations of
archipelagic party-states in terms of transit under Arts. 51 to 53, which are
explained below:
To safeguard, in explicit terms, the general balance struck by [Articles 51
and 52] between the need for passage through the area (other than
straits used for international navigation) and the archipelagic states need
for security, Article 53 gave the archipelagic state the right to regulate
497
where and how ships and aircraft pass through its territory by
designating specific sea lanes. Rights of passage through these
archipelagic sea lanes are regarded as those of transit passage:
(1) An archipelagic State may designate sea lanes and air routes
thereabove, suitable for safe, continuous and expeditious
passage of foreign ships and aircraft through or over its
archipelagic waters and the adjacent territorial sea.
(2) All ships and aircraft enjoy the right of archipelagic sea lanes
passage in such sea lanes and air routes.
(3) Archipelagic sea lanes passage is the exercise in accordance
with the present Convention of the rights of navigation and
overflight in the normal mode solely for the purpose of
continuous, expeditious and unobstructed transit between one
part of the high seas or an exclusive economic zone and another
part of the high seas or an exclusive economic zone.34
But owing to the geographic structure and physical features of the
country, i.e., where it is "essentially a body of water studded with islands,
rather than islands with water around them,"35 the Philippines has
consistently maintained the conceptual unity of land and water as a
necessary element for territorial integrity,36 national security (which may
be compromised by the presence of warships and surveillance ships on
waters between the islands),37 and the preservation of its maritime
resources. As succinctly explained by Minister Arturo Tolentino, the
essence of the archipelagic concept is "the dominion and sovereignty of
the archipelagic State within its baselines, which were so drawn as to
preserve the territorial integrity of the archipelago by the inseparable
unity of the land and water domain."38 Indonesia, like the Philippines, in
terms of geographic reality, has expressed agreement with this
interpretation of the archipelagic concept. So it was that in 1957, the
Indonesian Government issued the Djuanda Declaration, therein stating :
[H]istorically, the Indonesian archipelago has been an entity since time
immemorial.1avvphi1 In view of the territorial entirety and of preserving
the wealth of the Indonesian state, it is deemed necessary to consider all
waters between the islands and entire entity.
x x x On the ground of the above considerations, the Government
states that all waters around, between and connecting, the
islands or parts of islands belonging to the Indonesian
archipelago irrespective of their width or dimension are natural
appurtenances of its land territory and therefore an integral part
of the inland or national waters subject to the absolute
sovereignty of Indonesia.39 (Emphasis supplied.)
Hence, the Philippines maintains the sui generis character of our
archipelagic waters as equivalent to the internal waters of
continental coastal states. In other words, the landward waters
embraced within the baselines determined by RA 9522, i.e., all
waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form
part of the internal waters of the Philippines.40 Accordingly, such
waters are not covered by the jurisdiction of the LOSC and cannot
be subjected to the rights granted to foreign states in archipelagic
waters, e.g., the right of innocent passage,41 which is allowed only
in the territorial seas, or that area of the ocean comprising 12
miles from the baselines of our archipelago; archipelagic sea-lane
passage;42 over flight;43 and traditional fishing rights.44
Our position that all waters within our baselines are internal
waters, which are outside the jurisdiction of the 1982 LOSC,45 was
abundantly made clear by the Philippine Declaration at the time
of the signing of the LOSC on December 10, 1982. To reiterate,
paragraphs 5, 6 and 7 of the Declaration state:
5. The Convention shall not be construed as amending in any
manner any pertinent laws and Presidential decrees of
Proclamation of the republic of the Philippines; the Government x
x x maintains and reserves the right and authority to make any
amendments to such laws, decrees or proclamations pursuant to
the provisions of the Philippine Constitution;
498
 6. The provisions of the Convention on archipelagic passage
through sea lanes do not nullify or impair the sovereignty of the
Philippines as an archipelagic State over the sea lanes and do not Footnotes
deprive it of authority to enact legislation to protect its
sovereignty, independence and security; 1
League of Cities of the Phil. v. COMELEC, G.R. No. 176951,
December 21, 2009, 608 SCRA 636.
7. The concept of archipelagic waters is similar to the concept of
internal waters under the Constitution of the Philippines and 2
Under Art. VIII, Sec. 5 of the Constitution, the Supreme Court is
removes straits connecting this water with the economic zone or empowered to review, revise, reverse, modify, or affirm on
high seas from the rights of foreign vessels to transit passage for appeal or certiorari as the law or the Rules of Court may provide,
international navigation. (Emphasis supplied.)46 final judgments and orders of lower courts in: all cases in which
the Constitutionality or validity of any treaty, international or
More importantly, by the ratification of the 1987 Constitution on February executive agreement, law, presidential decree, proclamation,
2, 1987, the integrity of the Philippine state as comprising both water and order, instruction, ordinance, or regulation is in question.
land was strengthened by the proviso in its first article, viz: "The waters (Emphasis supplied.)
around, between, and connecting the islands of the [Philippine]
archipelago, regardless of their breadth and dimensions, form part of the 3
December 10, 1982.
internal waters of the Philippines. (emphasis supplied)
4
May 8, 1984.
In effect, contrary to petitioners allegations, the Philippines ratification
of the 1982 LOSC did not matter-of-factly open our internal waters to 5
Available on
passage by foreign ships, either in the concept of innocent passage or <http://www.un.org/Depts/los/convention_agreements/texts/uncl
archipelagic sea-lane passage, in exchange for the international os/closindx.htm> (visited July 28, 2011).
communitys recognition of the Philippines as an archipelagic state. The
Filipino people, by ratifying the 1987 Constitution, veritably rejected the 6
UNCLOS, Art. 47, December 10, 1982.
quid pro quo petitioners take as being subsumed in that treaty.
7
J. Bernas, S.J., The 1987 Constitution of the Republic of the
Harmonized with the Declaration and the Constitution, the designation of Philippines A Commentary 57 (2003).
baselines made in RA 9522 likewise designates our internal waters,
through which passage by foreign ships is not a right, but may be granted 8
See J. Batongbacal, The Metes and Bounds of the Philippine
by the Philippines to foreign states but only as a dissolvable privilege. National Territory, An International Law and Policy Perspective,
Supreme Court of the Philippines, Philippine Judicial Academy
In view of the foregoing, I vote to DISMISS the Petition. Third Distinguished Lecture, Far Eastern University, June 27, 2008.

PRESBITERO J. VELASCO, JR. 9

J. Bernas, supra note 7, at 10.
Associate Justice
10
Citing Report No. 01 of the Committee on National Territory.

499
11 25
Citing Report No. 02 of the Committee on National Territory. June 17, 1961.

12 26
J. Bernas, supra note 7, at 11-14. September 18, 1968.

13 27
Id. at 14. G.R. No. 159618, February 1, 2011; citing Taada v. Angara, G.R.
No. 118295, May 2, 1997, 272 SCRA 18.
14
Id. at 9; citing Speech, Session February 15, 1972, of Delegates
28
Amanio Sorongon, et al. Art. 26, Vienna Convention on the Law of Treaties, 1969.

15 29
The history of this deleted phrase goes back to the last clause of Art. 13, Declaration of Rights and Duties of States Adopted by
Art. I of the 1935 Constitution which included "all territory over the International Law Commission, 1949.
which the present Government of the Philippine Islands exercises
jurisdiction. See J. Bernas, supra note 7, at 14. 30
See J. Batongbacal, supra note 8.

16 31
J. Bernas, supra note 7, at 16. Id.

17 32
Id.; citing deliberations of the February 17, 1972 Session. The Protest reads in part: "The above-mentioned Philippine Act
illegally claims Huangyan Island (referred as "Bajo de Masinloc" in
18
Id. the Act) of China as "areas over which the Philippines likewise
exercises sovereignty and jurisdiction." The Chinese Government
19 hereby reiterates that Huangyan Island and Nansha Islands have
De Leon, Philippine Constitution 62 (2011).
been part of the territory of China since ancient time. The
20
Petition, pp. 4-5. Peoples Republic of China has indisputable sovereignty over
Huangyan Island and Nansha Islands and their surrounding areas.
21
Art. 48 of UNCLOS III provides that the breadth of the territorial Any claim to territorial sovereignty over Huangyan Island and
sea, the contiguous zone, the exclusive economic zone and the Nansha Islands by any other State is, therefore, null and void."
continental shelf shall be measured from the archipelagic baseline Available on
drawn in accordance with Art. 47.
<http://www.un.org/Depts/los/LEGISLATIONANDTREATIE
22
R.P. Lotilla, The Philippine National Territory: A Collection of S/PDFFILES/DEPOSIT/
Related Documents 513-517 (1995); citing Batasang Pambansa, communicationsredeposit/mzn69_2009_chn.pdf> (visited
Acts and Resolution, 6th Regular Session. August 9, 2011).

33
23
J. Bernas, supra note 7, at 22. Supra note 5.

34
24
UNCLOS III, Art. 57. C. Ku, The Archipelagic States Concept and Regional Stability in
Southeast Asia, Case W. Res. J. Intl L., Vol. 23:463, 469; citing

500
1958 U.N. Conference on the Law of the Sea, Summary Records TS baselines around Sabah disputed with Malaysia) of the 1968
44, Doc. A/Conf. 13/42. Act No. 5446.

35
Id.

36
Hiran W. Jayewardene, The Regime of Islands in International
Law, AD Dordrecht: Martinus Nijhoff Publishers, p. 103 (1990).

37
Id. at 112.

38
UNCLOS III Off. Rec., Vol. II, 264, par. 65, and also pars. 61-62
and 66; cited in B. Kwiatkowska, "The Archipelagic Regime in
Practice in the Philippines and Indonesia Making or Breaking
International Law?", International Journal of Estuarine and
Coastal Law, Vol. 6, No. 1, pp. 6-7.

39
4 Whiteman D.G., International Law 284 (1965); quoted in C. Ku,
supra note 34, at 470.

40
1987 Constitution, Art. I.

41
LOSC, Arts. 52 and 54.

42
LOSC, Art. 53, par. 2.

43
LOSC, Art. 53, par. 2.

44
LOSC, Art. 51.

45
LOSC, Art. 8, par. 2.

46
Cf. B. Kwiatkowska, supra note 38; citing J.D. Ingles, "The
United Nations Convention on the Law of the Sea: Implications of
Philippine Ratification," 9 Philippine Yil (1983) 48-9 and 61-2; and
Congress of the Philippines, First Regular Session, Senate, S. No.
232, Explanatory Note and An Act to Repeal Section 2 (concerning

501
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-30671 November 28, 1973
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. GUILLERMO P. VILLASOR, as Judge of the Court of First Instance of
Cebu, Branch I, THE PROVINCIAL SHERIFF OF RIZAL, THE SHERIFF OF
QUEZON CITY, and THE SHERIFF OF THE CITY OF MANILA, THE CLERK OF
COURT, Court of First Instance of Cebu, P. J. KIENER CO., LTD., GAVINO
UNCHUAN, AND INTERNATIONAL CONSTRUCTION CORPORATION,
respondents.
Office of the Solicitor General Felix V. Makasiar and Solicitor Bernardo P.
Pardo for petitioner.
Andres T. Velarde and Marcelo B. Fernan for respondents.
FERNANDO, J.:
The Republic of the Philippines in this certiorari and prohibition
proceeding challenges the validity of an order issued by respondent
Judge Guillermo P. Villasor, then of the Court of First Instance of Cebu,
Branch I,1 declaring a decision final and executory and of an alias writ of
execution directed against the funds of the Armed Forces of the
Philippines subsequently issued in pursuance thereof, the alleged ground
being excess of jurisdiction, or at the very least, grave abuse of discretion.
As thus simply and tersely put, with the facts being undisputed and the
principle of law that calls for application indisputable, the outcome is
predictable. The Republic of the Philippines is entitled to the writs prayed
for. Respondent Judge ought not to have acted thus. The order thus
impugned and the alias writ of execution must be nullified.
In the petition filed by the Republic of the Philippines on July 7, 1969, a
summary of facts was set forth thus: "7. On July 3, 1961, a decision was
rendered in Special Proceedings No. 2156-R in favor of respondents P. J.
Kiener Co., Ltd., Gavino Unchuan, and International Construction
Corporation, and against the petitioner herein, confirming the arbitration
award in the amount of P1,712,396.40, subject of Special Proceedings. 8.
On June 24, 1969, respondent Honorable Guillermo P. Villasor, issued an
Order declaring the aforestated decision of July 3, 1961 final and
executory, directing the Sheriffs of Rizal Province, Quezon City [as well
as] Manila to execute the said decision. 9. Pursuant to the said Order
dated June 24, 1969, the corresponding Alias Writ of Execution [was
issued] dated June 26, 1969, .... 10. On the strength of the afore-
mentioned Alias Writ of Execution dated June 26, 1969, the Provincial
Sheriff of Rizal (respondent herein) served notices of garnishment dated
June 28, 1969 with several Banks, specially on the "monies due the Armed
Forces of the Philippines in the form of deposits sufficient to cover the
amount mentioned in the said Writ of Execution"; the Philippine Veterans
Bank received the same notice of garnishment on June 30, 1969 .... 11. The
funds of the Armed Forces of the Philippines on deposit with the Banks,
particularly, with the Philippine Veterans Bank and the Philippine National
Bank [or] their branches are public funds duly appropriated and allocated
for the payment of pensions of retirees, pay and allowances of military
and civilian personnel and for maintenance and operations of the Armed
Forces of the Philippines, as per Certification dated July 3, 1969 by the
AFP Controller,..."2. The paragraph immediately succeeding in such
petition then alleged: "12. Respondent Judge, Honorable Guillermo P.
Villasor, acted in excess of jurisdiction [or] with grave abuse of discretion
amounting to lack of jurisdiction in granting the issuance of an alias writ
of execution against the properties of the Armed Forces of the
Philippines, hence, the Alias Writ of Execution and notices of garnishment
issued pursuant thereto are null and void."3 In the answer filed by
respondents, through counsel Andres T. Velarde and Marcelo B. Fernan,
the facts set forth were admitted with the only qualification being that
the total award was in the amount of P2,372,331.40.4
502
The Republic of the Philippines, as mentioned at the outset, did right in
filing this certiorari and prohibition proceeding. What was done by
respondent Judge is not in conformity with the dictates of the
Constitution. .
It is a fundamental postulate of constitutionalism flowing from the juristic
concept of sovereignty that the state as well as its government is immune
from suit unless it gives its consent. It is readily understandable why it
must be so. In the classic formulation of Holmes: "A sovereign is exempt
from suit, not because of any formal conception or obsolete theory, but
on the logical and practical ground that there can be no legal right as
against the authority that makes the law on which the right depends."5
Sociological jurisprudence supplies an answer not dissimilar. So it was
indicated in a recent decision, Providence Washington Insurance Co. v.
Republic of the Philippines,6 with its affirmation that "a continued
adherence to the doctrine of non-suability is not to be deplored for as
against the inconvenience that may be caused private parties, the loss of
governmental efficiency and the obstacle to the performance of its
multifarious functions are far greater if such a fundamental principle were
abandoned and the availability of judicial remedy were not thus
restricted. With the well known propensity on the part of our people to
go to court, at the least provocation, the loss of time and energy required
to defend against law suits, in the absence of such a basic principle that
constitutes such an effective obstacle, could very well be imagined."7
This fundamental postulate underlying the 1935 Constitution is now made
explicit in the revised charter. It is therein expressly provided: "The State
may not be sued without its consent."8 A corollary, both dictated by logic
and sound sense from a basic concept is that public funds cannot be the
object of a garnishment proceeding even if the consent to be sued had
been previously granted and the state liability adjudged. Thus in the
recent case of Commissioner of Public Highways v. San Diego,9 such a well-
settled doctrine was restated in the opinion of Justice Teehankee: "The
universal rule that where the State gives its consent to be sued by private
parties either by general or special law, it may limit claimant's action 'only
up to the completion of proceedings anterior to the stage of execution'
and that the power of the Courts ends when the judgment is rendered,
since government funds and properties may not be seized under writs of
execution or garnishment to satisfy such judgments, is based on obvious
considerations of public policy. Disbursements of public funds must be
covered by the corresponding appropriation as required by law. The
functions and public services rendered by the State cannot be allowed to
be paralyzed or disrupted by the diversion of public funds from their
legitimate and specific objects, as appropriated by law." 10 Such a
principle applies even to an attempted garnishment of a salary that had
accrued in favor of an employee. Director of Commerce and Industry v.
Concepcion, 11 speaks to that effect. Justice Malcolm as ponente left no
doubt on that score. Thus: "A rule which has never been seriously
questioned, is that money in the hands of public officers, although it may
be due government employees, is not liable to the creditors of these
employees in the process of garnishment. One reason is, that the State,
by virtue of its sovereignty, may not be sued in its own courts except by
express authorization by the Legislature, and to subject its officers to
garnishment would be to permit indirectly what is prohibited directly.
Another reason is that moneys sought to be garnished, as long as they
remain in the hands of the disbursing officer of the Government, belong
to the latter, although the defendant in garnishment may be entitled to a
specific portion thereof. And still another reason which covers both of
the foregoing is that every consideration of public policy forbids it." 12
In the light of the above, it is made abundantly clear why the Republic of
the Philippines could rightfully allege a legitimate grievance.
WHEREFORE, the writs of certiorari and prohibition are granted, nullifying
and setting aside both the order of June 24, 1969 declaring executory the
decision of July 3, 1961 as well as the alias writ of execution issued
thereunder. The preliminary injunction issued by this Court on July 12,
1969 is hereby made permanent.
Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.
Barredo, J, took no part.
503
Footnotes

1 The other respondents are the Provincial Sheriff of Rizal,

the Sheriff of Quezon City, the Sheriff of the City of
Manila, the Clerk of Court, Court of First Instance of Cebu,
P. J. Kiener Co., Ltd., Gavino Unchuan, and International
Construction Corporation.

2 Petition, pars. 7-11.

3 Ibid, par. 12.

4 Answer, par. III.

5 Kawananakoa v. Polyblank 205 U.S. 349 (1907).

6 L-26386, September 30, 1969, 29 SCRA 598.

7 Ibid, 601-602.

8 Article XV, Sec. 16.

9 L-30098, February 8, 1970, SCRA 616.

10 Ibid, 625. The opinion cited among others the following

decisions: Merritt v. Government, 34 Phil. 311 (1916);
Visayan Refining Co. v. Camus, 40 Phil. 550 (1919); Director
of Commerce v. Concepcion, 43 Phil. 384 (1922); Belleng
Republic, L-19856, Sept. 16, 1963, 9 SCRA 6; Republic v.
Palacio, L-20322, May 29, 1968, 23 SCRA 899.

11 43 Phil. 384 (1922).

12 Ibid, 386.

504
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 70853 March 12, 1987
REPUBLIC OF THE PHILIPPINES, petitioner-appellee,
vs.
PABLO FELICIANO and INTERMEDIATE APPELLATE COURT, respondents-
appellants.
YAP, J.:
Petitioner seeks the review of the decision of the Intermediate Appellate
Court dated April 30, 1985 reversing the order of the Court of First
Instance of Camarines Sur, Branch VI, dated August 21, 1980, which
dismissed the complaint of respondent Pablo Feliciano for recovery of
ownership and possession of a parcel of land on the ground of non-
suability of the State.
The background of the present controversy may be briefly summarized as
follows:
On January 22, 1970, respondent Feliciano filed a complaint with the then
Court of First Instance of Camarines Sur against the Republic of the
Philippines, represented by the Land Authority, for the recovery of
ownership and possession of a parcel of land, consisting of four (4) lots
with an aggregate area of 1,364.4177 hectares, situated in the Barrio of
Salvacion, Municipality of Tinambac, Camarines Sur. Plaintiff alleged that
he bought the property in question from Victor Gardiola by virtue of a
Contract of Sale dated May 31, 1952, followed by a Deed of Absolute Sale
on October 30, 1954; that Gardiola had acquired the property by purchase
from the heirs of Francisco Abrazado whose title to the said property was
evidenced by an informacion posesoria that upon plaintiff's purchase of
the property, he took actual possession of the same, introduced various
improvements therein and caused it to be surveyed in July 1952, which
survey was approved by the Director of Lands on October 24, 1954; that
on November 1, 1954, President Ramon Magsaysay issued Proclamation
No. 90 reserving for settlement purposes, under the administration of the
National Resettlement and Rehabilitation Administration (NARRA), a
tract of land situated in the Municipalities of Tinambac and Siruma,
Camarines Sur, after which the NARRA and its successor agency, the Land
Authority, started sub-dividing and distributing the land to the settlers;
that the property in question, while located within the reservation
established under Proclamation No. 90, was the private property of
plaintiff and should therefore be excluded therefrom. Plaintiff prayed
that he be declared the rightful and true owner of the property in
question consisting of 1,364.4177 hectares; that his title of ownership
based on informacion posesoria of his predecessor-in-interest be declared
legal valid and subsisting and that defendant be ordered to cancel and
nullify all awards to the settlers.
The defendant, represented by the Land Authority, filed an answer,
raising by way of affirmative defenses lack of sufficient cause of action
and prescription.
On August 29, 1970, the trial court, through Judge Rafael S. Sison,
rendered a decision declaring Lot No. 1, with an area of 701.9064
hectares, to be the private property of the plaintiff, "being covered by a
possessory information title in the name of his predecessor-in-interest"
and declaring said lot excluded from the NARRA settlement reservation.
The court declared the rest of the property claimed by plaintiff, i.e. Lots 2,
3 and 4, reverted to the public domain.
A motion to intervene and to set aside the decision of August 29, 1970
was filed by eighty-six (86) settlers, together with the barrio council of
Pag-asay, alleging among other things that intervenors had been in
possession of the land in question for more than twenty (20) years under
claim of ownership.
505
On January 25, 1971, the court a quo reconsidered its decision, reopened
the case and directed the intervenors to file their corresponding
pleadings and present their evidence; all evidence already presented
were to remain but plaintiff, as well as the Republic of the Philippines,
could present additional evidence if they so desire. The plaintiff
presented additional evidence on July 30, 1971, and the case was set for
hearing for the reception of intervenors' evidence on August 30 and
August 31, 1971.
On August 30, 1971, the date set for the presentation of the evidence for
intervenors, the latter did not appear but submitted a motion for
postponement and resetting of the hearing on the next day, August 31,
1971. The trial court denied the motion for postponement and allowed
plaintiff to offer his evidence "en ausencia," after which the case would
be deemed submitted for decision. On the following day, August 31, 1971,
Judge Sison rendered a decision reiterating his decision of August 29,
1970.
A motion for reconsideration was immediately filed by the intervenors.
But before this motion was acted upon, plaintiff filed a motion for
execution, dated November 18, 1971. On December 10, 1971, the lower
court, this time through Judge Miguel Navarro, issued an order denying
the motion for execution and setting aside the order denying intervenors'
motion for postponement. The case was reopened to allow intervenors
to present their evidence. Unable to secure a reconsideration of Judge
Navarro's order, the plaintiff went to the Intermediate Appellate Court on
a petition for certiorari. Said petition was, however, denied by the
Intermediate Appellate Court, and petitioners brought the matter to this
Court in G.R. No. 36163, which was denied on May 3, 1973 Consequently,
the case was remanded to the court a quo for further proceedings.
On August 31, 1970, intervenors filed a motion to dismiss, principally on
the ground that the Republic of the Philippines cannot be sued without
its consent and hence the action cannot prosper. The motion was
opposed by the plaintiff.
On August 21, 1980, the trial court, through Judge Esteban Lising, issued
the questioned order dismissing the case for lack of jurisdiction.
Respondent moved for reconsideration, while the Solicitor General, on
behalf of the Republic of the Philippines filed its opposition thereto,
maintaining that the dismissal was proper on the ground of non-suability
of the State and also on the ground that the existence and/or authenticity
of the purported possessory information title of the respondents'
predecessor-in-interest had not been demonstrated and that at any rate,
the same is not evidence of title, or if it is, its efficacy has been lost by
prescription and laches.
Upon denial of the motion for reconsideration, plaintiff again went to the
Intermediate Appellate Court on petition for certiorari. On April 30, 1985,
the respondent appellate court rendered its decision reversing the order
of Judge Lising and remanding the case to the court a quo for further
proceedings. Hence this petition.
We find the petition meritorious. The doctrine of non-suability of the
State has proper application in this case. The plaintiff has impleaded the
Republic of the Philippines as defendant in an action for recovery of
ownership and possession of a parcel of land, bringing the State to court
just like any private person who is claimed to be usurping a piece of
property. A suit for the recovery of property is not an action in rem, but
an action in personam. 1 It is an action directed against a specific party or
parties, and any judgment therein binds only such party or parties. The
complaint filed by plaintiff, the private respondent herein, is directed
against the Republic of the Philippines, represented by the Land
Authority, a governmental agency created by Republic Act No. 3844.
By its caption and its allegation and prayer, the complaint is clearly a suit
against the State, which under settled jurisprudence is not permitted,
except upon a showing that the State has consented to be sued, either
expressly or by implication through the use of statutory language too
plain to be misinterpreted.2 There is no such showing in the instant case.
Worse, the complaint itself fails to allege the existence of such consent.
This is a fatal defect, 3 and on this basis alone, the complaint should have
been dismissed.
The failure of the petitioner to assert the defense of immunity from suit
when the case was tried before the court a quo, as alleged by private
506
respondent, is not fatal. It is now settled that such defense "may be
invoked by the courts sua sponte at any stage of the proceedings." 4
Private respondent contends that the consent of petitioner may be read
from the Proclamation itself, when it established the reservation " subject
to private rights, if any there be. " We do not agree. No such consent can
be drawn from the language of the Proclamation. The exclusion of
existing private rights from the reservation established by Proclamation
No. 90 can not be construed as a waiver of the immunity of the State
from suit. Waiver of immunity, being a derogation of sovereignty, will not
be inferred lightly. but must be construed in strictissimi juris. 5 Moreover,
the Proclamation is not a legislative act. The consent of the State to be
sued must emanate from statutory authority. Waiver of State immunity
can only be made by an act of the legislative body.
Neither is there merit in respondent's submission, which the respondent
appellate court sustained, on the basis of our decision in the Begosa case,
6 that the present action is not a suit against the State within the rule of
State immunity from suit, because plaintiff does not seek to divest the
Government of any of its lands or its funds. It is contended that the
complaint involves land not owned by the State, but private land
belonging to the plaintiff, hence the Government is not being divested of
any of its properties. There is some sophistry involved in this argument,
since the character of the land sought to be recovered still remains to be
established, and the plaintiff's action is directed against the State
precisely to compel the latter to litigate the ownership and possession of
the property. In other words, the plaintiff is out to establish that he is the
owner of the land in question based, incidentally, on an informacion
posesoria of dubious value, and he seeks to establish his claim of
ownership by suing the Republic of the Philippines in an action in
personam.
The inscription in the property registry of an informacion posesoria under
the Spanish Mortgage Law was a means provided by the law then in force
in the Philippines prior to the transfer of sovereignty from Spain to the
United States of America, to record a claimant's actual possession of a
piece of land, established through an ex parte proceeding conducted in
accordance with prescribed rules. 7 Such inscription merely furnishes, at
best, prima facie evidence of the fact that at the time the proceeding was
held, the claimant was in possession of the land under a claim of right as
set forth in his application. 8 The possessory information could ripen into
a record of ownership after the lapse of 20 years (later reduced to 10
years), upon the fulfillment of the requisites prescribed in Article 393 of
the Spanish Mortgage Law.
There is no showing in the case at bar that the informacion posesoria held
by the respondent had been converted into a record of ownership. Such
possessory information, therefore, remained at best mere prima facie
evidence of possession. Using this possessory information, the
respondent could have applied for judicial confirmation of imperfect title
under the Public Land Act, which is an action in rem. However, having
failed to do so, it is rather late for him to pursue this avenue at this time.
Respondent must also contend, as the records disclose, with the fact
admitted by him and stated in the decision of the Court a quo that settlers
have been occupying and cultivating the land in question since even
before the outbreak of the war, which puts in grave doubt his own claim
of possession.
Worthy of note is the fact, as pointed out by the Solicitor General, that
the informacion posesoria registered in the Office of the Register of Deed
of Camarines Sur on September 23, 1952 was a "reconstituted"
possessory information; it was "reconstituted from the duplicate
presented to this office (Register of Deeds) by Dr. Pablo Feliciano,"
without the submission of proof that the alleged duplicate was authentic
or that the original thereof was lost. Reconstitution can be validly made
only in case of loss of the original. 10 These circumstances raise grave
doubts as to the authenticity and validity of the "informacion posesoria"
relied upon by respondent Feliciano. Adding to the dubiousness of said
document is the fact that "possessory information calls for an area of
only 100 hectares," 11 whereas the land claimed by respondent Feliciano
comprises 1,364.4177 hectares, later reduced to 701-9064 hectares. Courts
should be wary in accepting "possessory information documents, as well
as other purportedly old Spanish titles, as proof of alleged ownership of
lands.
507
WHEREFORE, judgment is hereby rendered reversing and setting aside
the appealed decision of the Intermediate Appellate Court, dated April
30, 1985, and affirming the order of the court a quo, dated August 21,
1980, dismissing the complaint filed by respondent Pablo Feliciano
against the Republic of the Philippines. No costs.
SO ORDERED.
9 Querol and Flores v. Querol, 48 Phil. 90, 98-99.
10 Republic of the Philippines vs. Court of Appeals, 94
SCRA 865.
11 Government of the Philippines v. Heirs of Abella, 49
Phil. 374, 379.

Narvasa, Cruz, Feliciano, Gancayco and Sarmiento, JJ., concur.

Melencio-Herrera, J., is on leave.

Footnotes

1 Ang Lam v. Rosenosa 86 Phil. 447.

2 Providence Washington Insurance Co. v. Republic of the

Philippines, 29 SCRA 598, 601.

3 Insurance Company of North America v. Republic of the

Philippines, 20 SCRA 627.

4 Insurance Company of North America v. Osaka Shosen

Kaisha 27 SCRA 780.

5 Mobil Philippines Exploration, nn. v. Customs Arrastre

Service, 18 SCRA 1120; Insurance Company of North
America v. Warner, 21 SCRA 766.

6 Begosa v. Philippine Veterans Administration 32 SCRA

466.

7 Alfonso v. Commanding General 7 Phil. 600, 615.

8 Bishop of Segovia v. Mun. of Bantay, 28 Phil. 347, 351.

508
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-55273-83 December 19, 1981
GAUDENCIO RAYO, BIENVINIDO PASCUAL, TOMAS MANUEL, MARIANO
CRUZ, PEDRO BARTOLOME, BERNARDINO CRUZ JOSE PALAD , LUCIO
FAJARDO, FRANCISCO RAYOS, ANGEL TORRES, NORBERTO TORRES,
RODELIO JOAQUIN, PEDRO AQUINO, APOLINARIO BARTOLOME,
MAMERTO BERNARDO, CIRIACO CASTILLO, GREGORIO CRUZ, SIMEON
ESTRELLA, EPIFANIO MARCELO, HERMOGENES SAN PEDRO, JUAN
SANTOS, ELIZABETH ABAN, MARCELINA BERNABE, BUENAVENTURA
CRUZ, ANTONIO MENESES, ROMAN SAN PEDRO, LOPEZ ESPINOSA,
GODOFREDO PUNZAL, JULIANA GARCIA, LEBERATO SARMIENTO,
INOCENCIO DE LEON, CARLOS CORREA, REYNALDO CASIMIRO,
ANTONIO GENER, GAUDENCIO CASTILLO, MATIAS PEREZ, CRISPINIANO
TORRES, CRESENCIO CRUZ, PROTACIO BERNABE, MARIANO ANDRES,
CRISOSTOMO CRUZ, MARCOS EUSTAQUIO, PABLO LEGASPI, VICENTE
PASCUAL, ALEJANDRA SISON, EUFRACIO TORRES, ROGELIO
BARTOLOME, RODOLFO BERNARDO, APOLONIO CASTILLO, MARCELINO
DALMACIO, EUTIQUIO LEGASPI, LORENZO LUCIANO and GREGORIO
PALAD, petitioners,
vs.
COURT OF FIRST INSTANCE OF BULACAN, BRANCH V, STA. MARIA, and
NATIONAL POWER CORPORATION, respondents.
ABAD SANTOS, J.:
The relevant antecedents of this case are narrated in the petition and
have not been controverted, namely:
3. At about midnight on October 26, 1978, during the
height of that infamous typhoon "KADING" the
respondent corporation, acting through its plant
superintendent, Benjamin Chavez, opened or caused to
be opened simultaneously all the three floodgates of the
Angat Dam. And as a direct and immediate result of the
sudden, precipitate and simultaneous opening of said
floodgates several towns in Bulacan were inundated.
Hardest-hit was Norzagaray. About a hundred of its
residents died or were reported to have died and
properties worth million of pesos destroyed or washed
away. This flood was unprecedented in Norzagaray.
4. Petitioners, who were among the many unfortunate
victims of that man-caused flood, filed with the
respondent Court eleven complaints for damages against
the respondent corporation and the plant superintendent
of Angat Dam, Benjamin Chavez, docketed as Civil Cases
Nos. SM-950 951, 953, 958, 959, 964, 965, 966, 981, 982
and 983. These complaints though separately filed have a
common/similar cause of action. ...
5. Respondent corporation filed separate answers to each
of these eleven complaints. Apart from traversing the
material averments in the complaints and setting forth
counterclaims for damages respondent corporation
invoked in each answer a special and affirmative defense
that "in the operation of the Angat Dam," it is
"performing a purely governmental function", hence it
"can not be sued without the express consent of the
State." ...
6. On motion of the respondent corporation a preliminary
hearing was held on its affirmative defense as though a
motion to dismiss were filed. Petitioners opposed the
prayer for dismissal and contended that respondent
corporation is performing not governmental but merely
proprietary functions and that under its own organic act,
509
 Section 3 (d) of Republic Act No. 6395, it can sue and be
sued in any court. ...
7. On July 29, 1980 petitioners received a copy of the
questioned order of the respondent Court dated
December 21, 1979 dismissing all their complaints as
against the respondent corporation thereby leaving the
superintendent of the Angat Dam, Benjamin Chavez, as
the sole party-defendant. ...
8. On August 7, 1980 petitioners filed with the respondent
Court a motion for reconsideration of the questioned
order of dismissal. ...
9. The respondent Court denied petitioners' motion for
reconsideration in its order dated October 3, 1980. ...
Hence, the present petition for review on certiorari under
Republic Act No. 5440. (Rollo, pp. 3-6.)
The Order of dismissal dated December 12, 1979, reads as follows:
Under consideration is a motion to dismiss embodied as a
special affirmative defense in the answer filed by
defendant NPC on the grounds that said defendant
performs a purely governmental function in the operation
of the Angat Dam and cannot therefore be sued for
damages in the instant cases in connection therewith.
Plaintiffs' opposition to said motion to discuss, relying on
Sec. 3 (d) of Republic Act 6396 which imposes on the NPC
the power and liability to sue and be sued in any court, is
not tenable since the same refer to such matters only as
are within the scope of the other corporate powers of
said defendant and not matters of tort as in the instant
cases. It being an agency performing a purely
governmental function in the operation of the Angat
Dam, said defendant was not given any right to commit
wrongs upon individuals. To sue said defendant for tort
may require the express consent of the State.
WHEREFORE, the cases against defendant NPC are hereby
dismissed. (Rollo, p. 60.)
The Order dated October 3, 1980, denying the motion for reconsideration
filed by the plaintiffs is pro forma; the motion was simply denied for lack
of merit. (Rollo, p. 74.)
The petition to review the two orders of the public respondent was filed
on October 16, 1980, and on October 27, 1980, We required the
respondents to comment. It was only on April 13, 1981, after a number of
extensions, that the Solicitor General filed the required comment. (Rollo,
pp. 107-114.)
On May 27, 1980, We required the parties to file simultaneous
memoranda within twenty (20) days from notice. (Rollo, p. 115.)
Petitioners filed their memorandum on July 22, 1981. (Rollo, pp. 118-125.)
The Solicitor General filed a number of motions for extension of time to
file his memorandum. We granted the seventh extension with a warning
that there would be no further extension. Despite the warning the
Solicitor General moved for an eighth extension which We denied on
November 9, 1981. A motion for a ninth extension was similarly denied on
November 18, 1981. The decision in this case is therefore, without the
memorandum of the Solicitor General.
The parties are agreed that the Order dated December 21, 1979, raises the
following issues:
1. Whether respondent National Power Corporation performs a
governmental function with respect to the management and operation of
the Angat Dam; and
2. Whether the power of respondent National Power Corporation to sue
and be sued under its organic charter includes the power to be sued for
tort.
510
The petition is highly impressed with merit.

It is not necessary to write an extended dissertation on whether or not

the NPC performs a governmental function with respect to the
management and operation of the Angat Dam. It is sufficient to say that
the government has organized a private corporation, put money in it and
has allowed it to sue and be sued in any court under its charter. (R.A. No.
6395, Sec. 3 (d).) As a government owned and controlled corporation, it
has a personality of its own, distinct and separate from that of the
Government. (See National Shipyards and Steel Corp. vs. CIR, et al., L-
17874, August 31, 1963, 8 SCRA 781.) Moreover, the charter provision that
the NPC can "sue and be sued in any court" is without qualification on the
cause of action and accordingly it can include a tort claim such as the one
instituted by the petitioners.

WHEREFORE, the petition is hereby granted; the Orders of the

respondent court dated December 12, 1979 and October 3, 1980, are set
aside; and said court is ordered to reinstate the complaints of the
petitioners. Costs against the NPC.

SO ORDERED.

Barredo (Chairman), Aquino, De Castro, Ericta and Escolin JJ., concur.

Concepcion Jr., J., is on leave.

511
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-52179 April 8, 1991
MUNICIPALITY OF SAN FERNANDO, LA UNION, petitioner
vs.
HON. JUDGE ROMEO N. FIRME, JUANA RIMANDO-BANIA, IAUREANO
BANIA, JR., SOR MARIETA BANIA, MONTANO BANIA, ORJA BANIA,
AND LYDIA R. BANIA, respondents.
Mauro C. Cabading, Jr. for petitioner.
Simeon G. Hipol for private respondent.
MEDIALDEA, J.:
This is a petition for certiorari with prayer for the issuance of a writ of
preliminary mandatory injunction seeking the nullification or modification
of the proceedings and the orders issued by the respondent Judge
Romeo N. Firme, in his capacity as the presiding judge of the Court of First
Instance of La Union, Second Judicial District, Branch IV, Bauang, La
Union in Civil Case No. 107-BG, entitled "Juana Rimando Bania, et al. vs.
Macario Nieveras, et al." dated November 4, 1975; July 13, 1976; August
23,1976; February 23, 1977; March 16, 1977; July 26, 1979; September 7,
1979; November 7, 1979 and December 3, 1979 and the decision dated
October 10, 1979 ordering defendants Municipality of San Fernando, La
Union and Alfredo Bislig to pay, jointly and severally, the plaintiffs for
funeral expenses, actual damages consisting of the loss of earning
capacity of the deceased, attorney's fees and costs of suit and dismissing
the complaint against the Estate of Macario Nieveras and Bernardo
Balagot.
The antecedent facts are as follows:
Petitioner Municipality of San Fernando, La Union is a municipal
corporation existing under and in accordance with the laws of the
Republic of the Philippines. Respondent Honorable Judge Romeo N.
Firme is impleaded in his official capacity as the presiding judge of the
Court of First Instance of La Union, Branch IV, Bauang, La Union. While
private respondents Juana Rimando-Bania, Laureano Bania, Jr., Sor
Marietta Bania, Montano Bania, Orja Bania and Lydia R. Bania are
heirs of the deceased Laureano Bania Sr. and plaintiffs in Civil Case No.
107-Bg before the aforesaid court.
At about 7 o'clock in the morning of December 16, 1965, a collision
occurred involving a passenger jeepney driven by Bernardo Balagot and
owned by the Estate of Macario Nieveras, a gravel and sand truck driven
by Jose Manandeg and owned by Tanquilino Velasquez and a dump truck
of the Municipality of San Fernando, La Union and driven by Alfredo
Bislig. Due to the impact, several passengers of the jeepney including
Laureano Bania Sr. died as a result of the injuries they sustained and four
(4) others suffered varying degrees of physical injuries.
On December 11, 1966, the private respondents instituted a compliant for
damages against the Estate of Macario Nieveras and Bernardo Balagot,
owner and driver, respectively, of the passenger jeepney, which was
docketed Civil Case No. 2183 in the Court of First Instance of La Union,
Branch I, San Fernando, La Union. However, the aforesaid defendants
filed a Third Party Complaint against the petitioner and the driver of a
dump truck of petitioner.
Thereafter, the case was subsequently transferred to Branch IV, presided
over by respondent judge and was subsequently docketed as Civil Case
No. 107-Bg. By virtue of a court order dated May 7, 1975, the private
respondents amended the complaint wherein the petitioner and its
regular employee, Alfredo Bislig were impleaded for the first time as
defendants. Petitioner filed its answer and raised affirmative defenses
such as lack of cause of action, non-suability of the State, prescription of
cause of action and the negligence of the owner and driver of the
passenger jeepney as the proximate cause of the collision.
512
In the course of the proceedings, the respondent judge issued the
following questioned orders, to wit:
(1) Order dated November 4, 1975 dismissing the cross-claim
against Bernardo Balagot;
(2) Order dated July 13, 1976 admitting the Amended Answer of
the Municipality of San Fernando, La Union and Bislig and setting
the hearing on the affirmative defenses only with respect to the
supposed lack of jurisdiction;
(3) Order dated August 23, 1976 deferring there resolution of the
grounds for the Motion to Dismiss until the trial;
(4) Order dated February 23, 1977 denying the motion for
reconsideration of the order of July 13, 1976 filed by the
Municipality and Bislig for having been filed out of time;
(5) Order dated March 16, 1977 reiterating the denial of the
motion for reconsideration of the order of July 13, 1976;
(6) Order dated July 26, 1979 declaring the case deemed
submitted for decision it appearing that parties have not yet
submitted their respective memoranda despite the court's
direction; and
(7) Order dated September 7, 1979 denying the petitioner's
motion for reconsideration and/or order to recall prosecution
witnesses for cross examination.
On October 10, 1979 the trial court rendered a decision, the dispositive
portion is hereunder quoted as follows:
IN VIEW OF ALL OF (sic) THE FOREGOING, judgment is hereby
rendered for the plaintiffs, and defendants Municipality of San
Fernando, La Union and Alfredo Bislig are ordered to pay jointly
and severally, plaintiffs Juana Rimando-Bania, Mrs. Priscilla B.
Surell, Laureano Bania Jr., Sor Marietta Bania, Mrs. Fe B.
Soriano, Montano Bania, Orja Bania and Lydia B. Bania the
sums of P1,500.00 as funeral expenses and P24,744.24 as the lost
expected earnings of the late Laureano Bania Sr., P30,000.00 as
moral damages, and P2,500.00 as attorney's fees. Costs against
said defendants.
The Complaint is dismissed as to defendants Estate of Macario
Nieveras and Bernardo Balagot.
SO ORDERED. (Rollo, p. 30)
Petitioner filed a motion for reconsideration and for a new trial without
prejudice to another motion which was then pending. However,
respondent judge issued another order dated November 7, 1979 denying
the motion for reconsideration of the order of September 7, 1979 for
having been filed out of time.
Finally, the respondent judge issued an order dated December 3, 1979
providing that if defendants municipality and Bislig further wish to pursue
the matter disposed of in the order of July 26, 1979, such should be
elevated to a higher court in accordance with the Rules of Court. Hence,
this petition.
Petitioner maintains that the respondent judge committed grave abuse
of discretion amounting to excess of jurisdiction in issuing the aforesaid
orders and in rendering a decision. Furthermore, petitioner asserts that
while appeal of the decision maybe available, the same is not the speedy
and adequate remedy in the ordinary course of law.
On the other hand, private respondents controvert the position of the
petitioner and allege that the petition is devoid of merit, utterly lacking
the good faith which is indispensable in a petition for certiorari and
prohibition. (Rollo, p. 42.) In addition, the private respondents stress that
petitioner has not considered that every court, including respondent
court, has the inherent power to amend and control its process and
orders so as to make them conformable to law and justice. (Rollo, p. 43.)
513
The controversy boils down to the main issue of whether or not the
respondent court committed grave abuse of discretion when it deferred
and failed to resolve the defense of non-suability of the State amounting
to lack of jurisdiction in a motion to dismiss.
In the case at bar, the respondent judge deferred the resolution of the
defense of non-suability of the State amounting to lack of jurisdiction
until trial. However, said respondent judge failed to resolve such defense,
proceeded with the trial and thereafter rendered a decision against the
municipality and its driver.
The respondent judge did not commit grave abuse of discretion when in
the exercise of its judgment it arbitrarily failed to resolve the vital issue of
non-suability of the State in the guise of the municipality. However, said
judge acted in excess of his jurisdiction when in his decision dated
October 10, 1979 he held the municipality liable for the quasi-delict
committed by its regular employee.
The doctrine of non-suability of the State is expressly provided for in
Article XVI, Section 3 of the Constitution, to wit: "the State may not be
sued without its consent."
Stated in simple parlance, the general rule is that the State may not be
sued except when it gives consent to be sued. Consent takes the form of
express or implied consent.
Express consent may be embodied in a general law or a special law. The
standing consent of the State to be sued in case of money claims
involving liability arising from contracts is found in Act No. 3083. A special
law may be passed to enable a person to sue the government for an
alleged quasi-delict, as in Merritt v. Government of the Philippine Islands
(34 Phil 311). (see United States of America v. Guinto, G.R. No. 76607,
February 26, 1990, 182 SCRA 644, 654.)
Consent is implied when the government enters into business contracts,
thereby descending to the level of the other contracting party, and also
when the State files a complaint, thus opening itself to a counterclaim.
(Ibid)
Municipal corporations, for example, like provinces and cities, are
agencies of the State when they are engaged in governmental functions
and therefore should enjoy the sovereign immunity from suit.
Nevertheless, they are subject to suit even in the performance of such
functions because their charter provided that they can sue and be sued.
(Cruz, Philippine Political Law, 1987 Edition, p. 39)
A distinction should first be made between suability and liability.
"Suability depends on the consent of the state to be sued, liability on the
applicable law and the established facts. The circumstance that a state is
suable does not necessarily mean that it is liable; on the other hand, it can
never be held liable if it does not first consent to be sued. Liability is not
conceded by the mere fact that the state has allowed itself to be sued.
When the state does waive its sovereign immunity, it is only giving the
plaintiff the chance to prove, if it can, that the defendant is liable."
(United States of America vs. Guinto, supra, p. 659-660)
Anent the issue of whether or not the municipality is liable for the torts
committed by its employee, the test of liability of the municipality
depends on whether or not the driver, acting in behalf of the
municipality, is performing governmental or proprietary functions. As
emphasized in the case of Torio vs. Fontanilla (G. R. No. L-29993, October
23, 1978. 85 SCRA 599, 606), the distinction of powers becomes
important for purposes of determining the liability of the municipality for
the acts of its agents which result in an injury to third persons.
Another statement of the test is given in City of Kokomo vs. Loy, decided
by the Supreme Court of Indiana in 1916, thus:
Municipal corporations exist in a dual capacity, and their functions
are twofold. In one they exercise the right springing from
sovereignty, and while in the performance of the duties
pertaining thereto, their acts are political and governmental. Their
officers and agents in such capacity, though elected or appointed
by them, are nevertheless public functionaries performing a
514
 public service, and as such they are officers, agents, and servants
of the state. In the other capacity the municipalities exercise a
private, proprietary or corporate right, arising from their
existence as legal persons and not as public agencies. Their
officers and agents in the performance of such functions act in
behalf of the municipalities in their corporate or individual
capacity, and not for the state or sovereign power." (112 N.E., 994-
995) (Ibid, pp. 605-606.)
of governmental functions. Hence, the death of the passenger tragic
and deplorable though it may be imposed on the municipality no duty
to pay monetary compensation.
All premises considered, the Court is convinced that the respondent
judge's dereliction in failing to resolve the issue of non-suability did not
amount to grave abuse of discretion. But said judge exceeded his
jurisdiction when it ruled on the issue of liability.

It has already been remarked that municipal corporations are suable ACCORDINGLY, the petition is GRANTED and the decision of the
because their charters grant them the competence to sue and be sued. respondent court is hereby modified, absolving the petitioner
Nevertheless, they are generally not liable for torts committed by them in municipality of any liability in favor of private respondents.
the discharge of governmental functions and can be held answerable
only if it can be shown that they were acting in a proprietary capacity. In SO ORDERED.
permitting such entities to be sued, the State merely gives the claimant
the right to show that the defendant was not acting in its governmental Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.
capacity when the injury was committed or that the case comes under
the exceptions recognized by law. Failing this, the claimant cannot Republic of the Philippines
recover. (Cruz, supra, p. 44.) SUPREME COURT
Manila
In the case at bar, the driver of the dump truck of the municipality insists
that "he was on his way to the Naguilian river to get a load of sand and THIRD DIVISION
gravel for the repair of San Fernando's municipal streets." (Rollo, p. 29.)

In the absence of any evidence to the contrary, the regularity of the

performance of official duty is presumed pursuant to Section 3(m) of Rule
131 of the Revised Rules of Court. Hence, We rule that the driver of the
dump truck was performing duties or tasks pertaining to his office.

We already stressed in the case of Palafox, et. al. vs. Province of Ilocos
Norte, the District Engineer, and the Provincial Treasurer (102 Phil 1186)
that "the construction or maintenance of roads in which the truck and
the driver worked at the time of the accident are admittedly
governmental activities."

After a careful examination of existing laws and jurisprudence, We arrive

at the conclusion that the municipality cannot be held liable for the torts
committed by its regular employee, who was then engaged in the discharge
515
G.R. No. 104269 November 11, 1993
DEPARTMENT OF AGRICULTURE, petitioner,
vs.
THE NATIONAL LABOR RELATIONS COMMISSION, et al., respondents.
Roy Lago Salcedo for private respondents.
VITUG, J.:
For consideration are the incidents that flow from the familiar doctrine of
non-suability of the state.
In this petition for certiorari, the Department of Agriculture seeks to
nullify the Resolution, 1 dated 27 November 1991, of the National Labor
Relations Commission (NLRC), Fifth Division, Cagayan de Oro City,
denying the petition for injunction, prohibition and mandamus that prays
to enjoin permanently the NLRC's Regional Arbitration Branch X and
Cagayan de Oro City Sheriff from enforcing the decision 2 of 31 May 1991
of the Executive Labor Arbiter and from attaching and executing on
petitioner's property.
The Department of Agriculture (herein petitioner) and Sultan Security
Agency entered into a contract3 on 01 April 1989 for security services to
be provided by the latter to the said governmental entity. Save for the
increase in the monthly rate of the guards, the same terms and conditions
were also made to apply to another contract, dated 01 May 1990,
between the same parties. Pursuant to their arrangements, guards were
deployed by Sultan Agency in the various premises of the petitioner.
On 13 September 1990, several guards of the Sultan Security Agency filed
a complaint for underpayment of wages, non-payment of 13th month
pay, uniform allowances, night shift differential pay, holiday pay and
overtime pay, as well as for damages,4 before the Regional Arbitration
Branch X of Cagayan de Oro City, docketed as NLRC Case No. 10-09-
00455-90 (or 10-10-00519-90, its original docket number), against the
Department of Agriculture and Sultan Security Agency.
The Executive Labor Arbiter rendered a decision on 31 May finding herein
petitioner and jointly and severally liable with Sultan Security Agency for
the payment of money claims, aggregating P266,483.91, of the
complainant security guards. The petitioner and Sultan Security Agency
did not appeal the decision of the Labor Arbiter. Thus, the decision
became final and executory.
On 18 July 1991, the Labor Arbiter issued a writ of execution. 5
commanding the City Sheriff to enforce and execute the judgment
against the property of the two respondents. Forthwith, or on 19 July
1991, the City Sheriff levied on execution the motor vehicles of the
petitioner, i.e. one (1) unit Toyota Hi-Ace, one (1) unit Toyota Mini Cruiser,
and one (1) unit Toyota Crown.6 These units were put under the custody
of Zacharias Roa, the property custodian of the petitioner, pending their
sale at public auction or the final settlement of the case, whichever would
come first.
A petition for injunction, prohibition and mandamus, with prayer for
preliminary writ of injunction was filed by the petitioner with the National
Labor Relations Commission (NLRC), Cagayan de Oro, alleging, inter alia,
that the writ issued was effected without the Labor Arbiter having duly
acquired jurisdiction over the petitioner, and that, therefore, the decision
of the Labor Arbiter was null and void and all actions pursuant thereto
should be deemed equally invalid and of no legal, effect. The petitioner
also pointed out that the attachment or seizure of its property would
hamper and jeopardize petitioner's governmental functions to the
prejudice of the public good.
On 27 November 1991, the NLRC promulgated its assailed resolution; viz:
WHEREFORE, premises considered, the following orders
are issued:
516
1. The enforcement and execution of the judgments
against petitioner in NLRC RABX Cases Nos. 10-10-00455-
90; 10-10-0481-90 and 10-10-00519-90 are temporarily
suspended for a period of two (2) months, more or less,
but not extending beyond the last quarter of calendar
year 1991 to enable petitioner to source and raise funds to
satisfy the judgment awards against it;
2. Meantime, petitioner is ordered and directed to source
for funds within the period above-stated and to deposit
the sums of money equivalent to the aggregate amount.
it has been adjudged to pay jointly and severally with
respondent Sultan Security Agency with the Regional
Arbitration Branch X, Cagayan de Oro City within the same
period for proper dispositions;
3. In order to ensure compliance with this order,
petitioner is likewise directed to put up and post sufficient
surety and supersedeas bond equivalent to at least to fifty
(50%) percent of the total monetary award issued by a
reputable bonding company duly accredited by the
Supreme Court or by the Regional Trial Court of Misamis
Oriental to answer for the satisfaction of the money
claims in case of failure or default on the part of petitioner
to satisfy the money claims;
4. The City Sheriff is ordered to immediately release the
properties of petitioner levied on execution within ten
(10) days from notice of the posting of sufficient surety or
supersedeas bond as specified above. In the meanwhile,
petitioner is assessed to pay the costs and/or expenses
incurred by the City Sheriff, if any, in connection with the
execution of the judgments in the above-stated cases
upon presentation of the appropriate claims or vouchers
and receipts by the city Sheriff, subject to the conditions
specified in the NLRC Sheriff, subject to the conditions
specified in the NLRC Manual of Instructions for Sheriffs;
5. The right of any of the judgment debtors to claim
reimbursement against each other for any payments
made in connection with the satisfaction of the
judgments herein is hereby recognized pursuant to the
ruling in the Eagle Security case, (supra). In case of dispute
between the judgment debtors, the Executive Labor
Arbiter of the Branch of origin may upon proper petition
by any of the parties conduct arbitration proceedings for
the purpose and thereby render his decision after due
notice and hearings;
7. Finally, the petition for injunction is Dismissed for lack of
basis. The writ of preliminary injunction previously issued
is Lifted and Set Aside and in lieu thereof, a Temporary
Stay of Execution is issued for a period of two (2) months
but not extending beyond the last quarter of calendar
year 1991, conditioned upon the posting of a surety or
supersedeas bond by petitioner within ten (10) days from
notice pursuant to paragraph 3 of this disposition. The
motion to admit the complaint in intervention is Denied
for lack of merit while the motion to dismiss the petition
filed by Duty Sheriff is Noted
SO ORDERED.
In this petition for certiorari, the petitioner charges the NLRC with grave
abuse of discretion for refusing to quash the writ of execution. The
petitioner faults the NLRC for assuming jurisdiction over a money claim
against the Department, which, it claims, falls under the exclusive
jurisdiction of the Commission on Audit. More importantly, the petitioner
asserts, the NLRC has disregarded the cardinal rule on the non-suability of
the State.
The private respondents, on the other hand, argue that the petitioner has
impliedly waived its immunity from suit by concluding a service contract
with Sultan Security Agency.
517
The basic postulate enshrined in the constitution that "(t)he State may
not be sued without its consent," 7 reflects nothing less than a
recognition of the sovereign character of the State and an express
affirmation of the unwritten rule effectively insulating it from the
jurisdiction of courts. 8 It is based on the very essence of sovereignty. As
has been aptly observed, by Justice Holmes, a sovereign is exempt from
suit, not because of any formal conception or obsolete theory, but on the
logical and practical ground that there can be no legal right as against the
authority that makes the law on which the right depends. 9 True, the
doctrine, not too infrequently, is derisively called "the royal prerogative
of dishonesty" because it grants the state the prerogative to defeat any
legitimate claim against it by simply invoking its non-suability. 10 We have
had occasion, to explain in its defense, however, that a continued
adherence to the doctrine of non-suability cannot be deplored, for the
loss of governmental efficiency and the obstacle to the performance of
its multifarious functions would be far greater in severity than the
inconvenience that may be caused private parties, if such fundamental
principle is to be abandoned and the availability of judicial remedy is not
to be accordingly restricted. 11
The rule, in any case, is not really absolute for it does not say that the
state may not be sued under any circumstances. On the contrary, as
correctly phrased, the doctrine only conveys, "the state may not be sued
without its consent;" its clear import then is that the State may at times
be sued. 12 The States' consent may be given expressly or impliedly.
Express consent may be made through a general law13 or a special law. 14
In this jurisdiction, the general law waiving the immunity of the state
from suit is found in Act No. 3083, where the Philippine government
"consents and submits to be sued upon any money claims involving
liability arising from contract, express or implied, which could serve as a
basis of civil action between private parties." 15 Implied consent, on the
other hand, is conceded when the State itself commences litigation, thus
opening itself to a counterclaim16 or when it enters into a contract. 17 In
this situation, the government is deemed to have descended to the level
of the other contracting party and to have divested itself of its sovereign
immunity. This rule, relied upon by the NLRC and the private respondents,
is not, however, without qualification. Not all contracts entered into by
the government operate as a waiver of its non-suability; distinction must
still be made between one which is executed in the exercise of its
sovereign function and another which is done in its proprietary capacity.
18
In the Unites States of America vs. Ruiz, 19 where the questioned
transaction dealt with improvements on the wharves in the naval
installation at Subic Bay, we held:
The traditional rule of immunity exempts a State from
being sued in the courts of another State without its
consent or waiver. This rule is a necessary consequence of
the principles of independence and equality of States.
However, the rules of International Law are not petrified;
they are constantly developing and evolving. And because
the activities of states have multiplied, it has been
necessary to distinguish them between sovereign and
governmental acts ( jure imperii) and private, commercial
and proprietary act ( jure gestionisis). The result is that
State immunity now extends only to acts jure imperii. The
restrictive application of State immunity is now the rule in
the United States, the United Kingdom and other states in
Western Europe.
xxx xxx xxx
The restrictive application of State immunity is proper
only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a state
may be said to have descended to the level of an
individual and can this be deemed to have actually given
its consent to be sued only when it enters into business
contracts. It does not apply where the contracts relates to
the exercise of its sovereign functions. In this case the
projects are an integral part of the naval base which is
devoted to the defense of both the United States and the
Philippines, indisputably a function of the government of
518
 the highest order; they are not utilized for not dedicated
to commercial or business purposes.
In the instant case, the Department of Agriculture has not pretended to
have assumed a capacity apart from its being a governmental entity when
it entered into the questioned contract; nor that it could have, in fact,
performed any act proprietary in character.
But, be that as it may, the claims of private respondents, i.e. for
underpayment of wages, holiday pay, overtime pay and similar other
items, arising from the Contract for Service, clearly constitute money
claims. Act No. 3083, aforecited, gives the consent of the State to be
"sued upon any moneyed claim involving liability arising from contract,
express or implied, . . . Pursuant, however, to Commonwealth Act ("C.A.")
No. 327, as amended by Presidential Decree ("P.D.") No. 1145, the money
claim first be brought to the Commission on Audit. Thus, in Carabao, Inc.,
vs. Agricultural Productivity Commission, 20 we ruled:
(C)laimants have to prosecute their money claims against
the Government under Commonwealth Act 327, stating
that Act 3083 stands now merely as the general law
waiving the State's immunity from suit, subject to the
general limitation expressed in Section 7 thereof that "no
execution shall issue upon any judgment rendered by any
Court against the Government of the (Philippines), and
that the conditions provided in Commonwealth Act 327
for filing money claims against the Government must be
strictly observed."
We fail to see any substantial conflict or inconsistency between the
provisions of C.A. No. 327 and the Labor Code with respect to money
claims against the State. The Labor code, in relation to Act No. 3083,
provides the legal basis for the State liability but the prosecution,
enforcement or satisfaction thereof must still be pursued in accordance
with the rules and procedures laid down in C.A. No. 327, as amended by
P.D. 1445.
When the state gives its consent to be sued, it does thereby necessarily
consent to unrestrained execution against it. tersely put, when the State
waives its immunity, all it does, in effect, is to give the other party an
opportunity to prove, if it can, that the State has a liability. 21 In Republic
vs. Villasor 22 this Court, in nullifying the issuance of an alias writ of
execution directed against the funds of the Armed Forces of the
Philippines to satisfy a final and executory judgment, has explained, thus
The universal rule that where the State gives its consent
to be sued by private parties either by general or special
law, it may limit the claimant's action "only up to the
completion of proceedings anterior to the stage of
execution" and that the power of the Courts ends when
the judgment is rendered, since government funds and
properties may not be seized under writs or execution or
garnishment to satisfy such judgments, is based on obvious
considerations of public policy. Disbursements of public
funds must be covered by the correspondent
appropriation as required by law. The functions and public
services rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds
from their legitimate and specific objects, as appropriated
by law.23
WHEREFORE, the petition is GRANTED. The resolution, dated 27
November 1991, is hereby REVERSED and SET ASIDE. The writ of
execution directed against the property of the Department of Agriculture
is nullified, and the public respondents are hereby enjoined permanently
from doing, issuing and implementing any and all writs of execution
issued pursuant to the decision rendered by the Labor Arbiter against
said petitioner.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
519
# Footnotes 15 See United States vs. Guinto, 182 SCRA 644, 654, supra.

1 Annex "A", Rollo, 23-52. 16 Froilan vs. Pan Oriental Shipping, G.R. No. 6060, 30
September 1950.
2 Annex "C", Ibid., 57-68.
17 Santos vs. Santos, 92 Phil. 281; Lyons vs. United States
3 Rollo, 59. of America, 104 SCRA 593.

4 Ibid., 57.
5 Annex "D", Petition, Rollo, 69.
6 Annex "E", Ibid., ibid., p. 70.
7 Article XVI, Section 3 of the Constitution.
8 Isagani Cruz, Philippine Political Law, 1991, p. 29.
9 Kawananakoa vs. Polyblank, 205 U.S. 353, 51 L. ed. 834.
10 U.S.A. vs. Guinto, 182 SCRA 644,654 (1990).
11 Providence Washington Ins. Co. vs. Republic, 29 SCRA
598
12 Ibid.
18 United States of America vs. Guinto, 182 SCRA 644;
United States of America vs. Ruiz, 136 SCRA 487 (195).
19 136 SCRA 487.
20 35 SCRA 224, 229 (1970).
21 Cruz, supra., 44-45.
22 54 SCRA 84 (1973).
23 See also Commissioner of Public Highways vs. San
Diego, 31 SCRA 616 (1970) citing others the following
decisions: Merritt vs. Government, 34 Phil. 311 (1916);
Visayan Refining Co. vs. Camus, 40 Phil. 550 (1919);
Director of Commerce vs. Concepcion, 43 Phil. 384 (1922);
Belleng vs. Republic, 9 SCRA 6 (1963); Republic vs. Palacio,
23 SCRA 899 (1968).

13 i.e. Commonwealth Act No. 327, as amended by

Presidential Decree No. 1445 (Sections 49-50), which
requires that all money claims against the government
must first be filed with the Commission on Audit which
must act upon it within sixty-days. Rejection of the claim
will authorize the claimant to elevate the matter to the
Supreme Court on certiorari and, in effect, sue the State
thereby.

14 Merritt vs. Government of the Philippines, 34 Phil. 311.

520
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-46930 June 10, 1988
DALE SANDERS, AND A.S. MOREAU, JR, petitioners,
vs.
HON. REGINO T. VERIDIANO II, as Presiding Judge, Branch I, Court of
First Instance of Zambales, Olongapo City, ANTHONY M. ROSSI and
RALPH L. WYERS, respondents.
CRUZ, J.:
The basic issue to be resolved in this case is whether or not the
petitioners were performing their official duties when they did the acts
for which they have been sued for damages by the private respondents.
Once this question is decided, the other answers will fall into place and
this petition need not detain us any longer than it already has.
Petitioner Sanders was, at the time the incident in question occurred, the
special services director of the U.S. Naval Station (NAVSTA) in Olongapo
City. 1 Petitioner Moreau was the commanding officer of the Subic Naval
Base, which includes the said station. 2 Private respondent Rossi is an
American citizen with permanent residence in the Philippines,3 as so was
private respondent Wyer, who died two years ago. 4 They were both
employed as gameroom attendants in the special services department of
the NAVSTA, the former having been hired in 1971 and the latter in 1969. 5
On October 3, 1975, the private respondents were advised that their
employment had been converted from permanent full-time to permanent
part-time, effective October 18, 1975. 6 Their reaction was to protest this
conversion and to institute grievance proceedings conformably to the
pertinent rules and regulations of the U.S. Department of Defense. The
result was a recommendation from the hearing officer who conducted
the proceedings for the reinstatement of the private respondents to
permanent full-time status plus backwages. The report on the hearing
contained the observation that "Special Services management practices
an autocratic form of supervision." 7
In a letter addressed to petitioner Moreau on May 17, 1976 (Annex "A" of
the complaint), Sanders disagreed with the hearing officer's report and
asked for the rejection of the abovestated recommendation. The letter
contained the statements that: a ) "Mr. Rossi tends to alienate most co-
workers and supervisors;" b) "Messrs. Rossi and Wyers have proven,
according to their immediate supervisors, to be difficult employees to
supervise;" and c) "even though the grievants were under oath not to
discuss the case with anyone, (they) placed the records in public places
where others not involved in the case could hear."
On November 7, 1975, before the start of the grievance hearings, a-letter
(Annex "B" of the complaint) purportedly corning from petitioner
Moreau as the commanding general of the U.S. Naval Station in Subic Bay
was sent to the Chief of Naval Personnel explaining the change of the
private respondent's employment status and requesting concurrence
therewith. The letter did not carry his signature but was signed by W.B.
Moore, Jr. "by direction," presumably of Moreau.
On the basis of these antecedent facts, the private respondent filed in the
Court of First Instance of Olongapo City a for damages against the herein
petitioners on November 8, 1976.8 The plaintiffs claimed that the letters
contained libelous imputations that had exposed them to ridicule and
caused them mental anguish and that the prejudgment of the grievance
proceedings was an invasion of their personal and proprietary rights.
The private respondents made it clear that the petitioners were being
sued in their private or personal capacity. However, in a motion to dismiss
filed under a special appearance, the petitioners argued that the acts
complained of were performed by them in the discharge of their official
duties and that, consequently, the court had no jurisdiction over them
under the doctrine of state immunity.
521
After extensive written arguments between the parties, the motion was
denied in an order dated March 8, 1977, 9 on the main ground that the
petitioners had not presented any evidence that their acts were official in
nature and not personal torts, moreover, the allegation in the complaint
was that the defendants had acted maliciously and in bad faith. The same
order issued a writ of preliminary attachment, conditioned upon the filing
of a P10,000.00 bond by the plaintiffs, against the properties of petitioner
Moreau, who allegedly was then about to leave the Philippines.
Subsequently, to make matters worse for the defendants, petitioner
Moreau was declared in a default by the trial court in its order dated
August 9, 1977. The motion to lift the default order on the ground that
Moreau's failure to appear at the pre-trial conference was the result of
some misunderstanding, and the motion for reconsideration of the denial
of the motion to dismiss, which was filed by the petitioner's new lawyers,
were denied by the respondent court on September 7, 1977.
This petition for certiorari, prohibition and preliminary injunction was
thereafter filed before this Court, on the contention that the above-
narrated acts of the respondent court are tainted with grave abuse of
discretion amounting to lack of jurisdiction.
We return now to the basic question of whether the petitioners were
acting officially or only in their private capacities when they did the acts
for which the private respondents have sued them for damages.
It is stressed at the outset that the mere allegation that a government
functionary is being sued in his personal capacity will not automatically
remove him from the protection of the law of public officers and, if
appropriate, the doctrine of state immunity. By the same token, the mere
invocation of official character will not suffice to insulate him from
suability and liability for an act imputed to him as a personal tort
committed without or in excess of his authority. These well-settled
principles are applicable not only to the officers of the local state but also
where the person sued in its courts pertains to the government of a
foreign state, as in the present case.
The respondent judge, apparently finding that the complained acts were
prima facie personal and tortious, decided to proceed to trial to
determine inter alia their precise character on the strength of the
evidence to be submitted by the parties. The petitioners have objected,
arguing that no such evidence was needed to substantiate their claim of
jurisdictional immunity. Pending resolution of this question, we issued a
temporary restraining order on September 26, 1977, that has since then
suspended the proceedings in this case in the court a quo.
In past cases, this Court has held that where the character of the act
complained of can be determined from the pleadings exchanged
between the parties before the trial, it is not necessary for the court to
require them to belabor the point at a trial still to be conducted. Such a
proceeding would be superfluous, not to say unfair to the defendant who
is subjected to unnecessary and avoidable inconvenience.
Thus, in Baer v. Tizon, 10 we held that a motion to dismiss a complaint
against the commanding general of the Olongapo Naval Base should not
have been denied because it had been sufficiently shown that the act for
which he was being sued was done in his official capacity on behalf of the
American government. The United States had not given its consent to be
sued. It was the reverse situation in Syquia v. Almeda Lopez," where we
sustained the order of the lower court granting a where we motion to
dismiss a complaint against certain officers of the U.S. armed forces also
shown to be acting officially in the name of the American government.
The United States had also not waived its immunity from suit. Only three
years ago, in United States of America v. Ruiz, 12 we set aside the denial by
the lower court of a motion to dismiss a complaint for damages filed
against the United States and several of its officials, it appearing that the
act complained of was governmental rather than proprietary, and
certainly not personal. In these and several other cases 13 the Court
found it redundant to prolong the other case proceedings after it had
become clear that the suit could not prosper because the acts
complained of were covered by the doctrine of state immunity.
It is abundantly clear in the present case that the acts for which the
petitioners are being called to account were performed by them in the
discharge of their official duties. Sanders, as director of the special
services department of NAVSTA, undoubtedly had supervision over its
personnel, including the private respondents, and had a hand in their
522
employment, work assignments, discipline, dismissal and other related
matters. It is not disputed that the letter he had written was in fact a
reply to a request from his superior, the other petitioner, for more
information regarding the case of the private respondents.14 Moreover,
even in the absence of such request, he still was within his rights in
reacting to the hearing officer's criticismin effect a direct attack against
him-that Special Services was practicing "an autocratic form of
supervision."
As for Moreau,what he is claimed to have done was write the Chief of
Naval Personnel for concurrence with the conversion of the private
respondents' type of employment even before the grievance proceedings
had even commenced. Disregarding for the nonce the question of its
timeliness, this act is clearly official in nature, performed by Moreau as
the immediate superior of Sanders and directly answerable to Naval
Personnel in matters involving the special services department of
NAVSTA In fact, the letter dealt with the financial and budgetary
problems of the department and contained recommendations for their
solution, including the re-designation of the private respondents. There
was nothing personal or private about it.
Given the official character of the above-described letters, we have to
conclude that the petitioners were, legally speaking, being sued as
officers of the United States government. As they have acted on behalf of
that government, and within the scope of their authority, it is that
government, and not the petitioners personally, that is responsible for
their acts. Assuming that the trial can proceed and it is proved that the
claimants have a right to the payment of damages, such award will have
to be satisfied not by the petitioners in their personal capacities but by
the United States government as their principal. This will require that
government to perform an affirmative act to satisfy the judgment, viz,
the appropriation of the necessary amount to cover the damages
awarded, thus making the action a suit against that government without
its consent.
There should be no question by now that such complaint cannot prosper
unless the government sought to be held ultimately liable has given its
consent to' be sued. So we have ruled not only in Baer but in many other
decisions where we upheld the doctrine of state immunity as applicable
not only to our own government but also to foreign states sought to be
subjected to the jurisdiction of our courts. 15
The practical justification for the doctrine, as Holmes put it, is that "there
can be no legal right against the authority which makes the law on which
the right depends.16 In the case of foreign states, the rule is derived from
the principle of the sovereign equality of states which wisely admonishes
that par in parem non habet imperium and that a contrary attitude would
"unduly vex the peace of nations." 17 Our adherence to this precept is
formally expressed in Article II, Section 2, of our Constitution, where we
reiterate from our previous charters that the Philippines "adopts the
generally accepted principles of international law as part of the law of the
land.
All this is not to say that in no case may a public officer be sued as such
without the previous consent of the state. To be sure, there are a number
of well-recognized exceptions. It is clear that a public officer may be sued
as such to compel him to do an act required by law, as where, say, a
register of deeds refuses to record a deed of sale; 18 or to restrain a
Cabinet member, for example, from enforcing a law claimed to be
unconstitutional; 19 or to compel the national treasurer to pay damages
from an already appropriated assurance fund; 20 or the commissioner of
internal revenue to refund tax over-payments from a fund already
available for the purpose; 21 or, in general, to secure a judgment that the
officer impleaded may satisfy by himself without the government itself
having to do a positive act to assist him. We have also held that where the
government itself has violated its own laws, the aggrieved party may
directly implead the government even without first filing his claim with
the Commission on Audit as normally required, as the doctrine of state
immunity "cannot be used as an instrument for perpetrating an injustice."
22
This case must also be distinguished from such decisions as Festejo v.
Fernando, 23 where the Court held that a bureau director could be sued
for damages on a personal tort committed by him when he acted without
or in excess of authority in forcibly taking private property without paying
just compensation therefor although he did convert it into a public
523
irrigation canal. It was not necessary to secure the previous consent of
the state, nor could it be validly impleaded as a party defendant, as it was
not responsible for the defendant's unauthorized act.
The case at bar, to repeat, comes under the rule and not under any of the
recognized exceptions. The government of the United States has not
given its consent to be sued for the official acts of the petitioners, who
cannot satisfy any judgment that may be rendered against them. As it is
the American government itself that will have to perform the affirmative
act of appropriating the amount that may be adjudged for the private
respondents, the complaint must be dismissed for lack of jurisdiction.
The Court finds that, even under the law of public officers, the acts of the
petitioners are protected by the presumption of good faith, which has
not been overturned by the private respondents. Even mistakes
concededly committed by such public officers are not actionable as long
as it is not shown that they were motivated by malice or gross negligence
amounting to bad faith.24 This, to, is well settled .25 Furthermore,
applying now our own penal laws, the letters come under the concept of
privileged communications and are not punishable, 26 let alone the fact
that the resented remarks are not defamatory by our standards. It seems
the private respondents have overstated their case.
A final consideration is that since the questioned acts were done in the
Olongapo Naval Base by the petitioners in the performance of their
official duties and the private respondents are themselves American
citizens, it would seem only proper for the courts of this country to
refrain from taking cognizance of this matter and to treat it as coming
under the internal administration of the said base.
The petitioners' counsel have submitted a memorandum replete with
citations of American cases, as if they were arguing before a court of the
United States. The Court is bemused by such attitude. While these
decisions do have persuasive effect upon us, they can at best be invoked
only to support our own jurisprudence, which we have developed and
enriched on the basis of our own persuasions as a people, particularly
since we became independent in 1946.
We appreciate the assistance foreign decisions offer us, and not only
from the United States but also from Spain and other countries from
which we have derived some if not most of our own laws. But we should
not place undue and fawning reliance upon them and regard them as
indispensable mental crutches without which we cannot come to our
own decisions through the employment of our own endowments We live
in a different ambience and must decide our own problems in the light of
our own interests and needs, and of our qualities and even idiosyncrasies
as a people, and always with our own concept of law and justice.
The private respondents must, if they are still sominded, pursue their
claim against the petitioners in accordance with the laws of the United
States, of which they are all citizens and under whose jurisdiction the
alleged offenses were committed. Even assuming that our own laws are
applicable, the United States government has not decided to give its
consent to be sued in our courts, which therefore has not acquired the
competence to act on the said claim,.
WHEREFORE, the petition is GRANTED. The challenged orders dated
March 8,1977, August 9,1977, and September 7, 1977, are SET ASIDE. The
respondent court is directed to DISMISS Civil Case No. 2077-O. Our
Temporary restraining order of September 26,1977, is made PERMANENT.
No costs.
SO ORDERED.
Narvasa, Gancayco, Grino-Aquio and Medialdea, JJ., Concur.
Footnotes
1 Rollo, pp. 2, 26.
2 Ibid.
3 Id.
524
4 Id., p. 319. 19 Javellana v. Executive Secretary, 50 SCRA 30: Ichong v.
Hernandez, 101 Phil. 1155.
5 Id., pp. 4, 27, 91.
20 Treasurer of the Philippines v. Court of Appeals, G.R.
6 Id., pp. 5, 91. No. L-42805, August 31, 1987.

7 Id., p. 5, 28, 91. 21 National Development Company v. Commissioner of

Internal Revenue, 151 SCRA 472.
8 Id., pp- 26-34.
22 Amigable v. Cuenca, 43 SCRA 360, reiterating
9 Id., pp- 90-94. Ministerio v. Court of First Instance of Cebu, 40 SCRA 464.

10 57 SCRA 1. 23 50 O.G. 1556.

11 84 Phil. 312. 24 Philippine Racing Club, Inc., et al. v. Bonifacio, et al.,

12 136 SCRA 487.
13 Lim v. Brownell, et al., 107 Phil. 344; Parreo v.
McGranery, 92 Phil. 791; Lim v. Nelson, 87 Phil. 328; Marvel
Building Corp. v. Philippine War Damage Commission, 85
Phil. 27.
14 Rollo, pp. 35-40.
109 Phil. 233.
25 Cabungcal, et al. v. Cordova, et al., 11 SCRA 584, cited in
Mabutol v. Pascual, 124 SCRA 867; Mindanao Realty Corp.
v. Kintanar, 6 SCRA 814; U.S. v. Santos, 36 Phil. 853. 2'
26 Art. 354, par. 1, Revised Penal Code; see also U.S. v.
Bustos, 37 Phil. 731; and Deano v. Godinez, 12 SCRA 843.

15 Syquia v. Almeda Lopez, supra; Marvel Building Corp. v.

Philippine War Damage Commission, supra; Lim v. Nelson,
supra; Philippine Alien Property Administration v. Castelo,
89 Phil. 568; Parreo v. McGranery, supra; Johnson v.
Turner, 94 Phil. 807-all cited in Baer case; United States of
America v. Ruiz, supra.

16 Kawanakoa v. Polybank, 205 U.S. 349.

17 De Haber v. Queen of Portugal, 17 QB 171.

18 Krivenko v. Register of Deeds, 79 Phil. 461.

525
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 84607 March 19, 1993
REPUBLIC OF THE PHILIPPINES, GEN. RAMON MONTANO, GEN.
ALFREDO LIM, GEN. ALEXANDER AGUIRRE, COL. EDGAR DULA TORRES,
COL. CEZAR NAZARENO, MAJ. FILEMON GASMEN, PAT. NICANOR
ABANDO, PFC SERAFIN CEBU, JR., GEN. BRIGIDO PAREDES, COL.
ROGELIO MONFORTE, PFC ANTONIO LUCERO, PAT. JOSE MENDIOLA,
PAT. NELSON TUASON, POLICE CORPORAL PANFILO ROGOS, POLICE LT.
JUAN B. BELTRAN, PAT. NOEL MANAGBAO, MARINE THIRD CLASS
TRAINEE (3CT) NOLITO NOGATO, 3CT ALEJANDRO B. NAGUIO, JR.,
EFREN ARCILLAS, 3CT AGERICO LUNA, 3CT BASILIO BORJA, 3CT
MANOLITO LUSPO, 3CT CRISTITUTO GERVACIO, 3CT MANUEL DELA
CRUZ, JR., MARINE (CDC) BN., (CIVIL DISTURBANCE CONTROL), MOBILE
DISPERSAL TEAM (MDT), LT. ROMEO PAQUINTO, LT. LAONGLAANG
GOCE, MAJ. DEMETRIO DE LA CRUZ, POLICE CAPTAIN RODOLFO NAVAL,
JOHN DOE, RICHARD DOE, ROBERTO DOE AND OTHER DOES,
petitioners,
vs.
HON. EDILBERTO G. SANDOVAL, Regional Trial Court of Manila, Branch
IX, ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA BAUTISTA,
CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA GUTIERREZ, NEMESIO
LAKINDANUM, PURITA YUMUL, MIGUEL ARABE, TERESITA ARJONA,
RONALDO CAMPOMANES AND CARMENCITA ARDONI VDA. DE
CAMPOMANES, ROGELIO DOMUNICO, in their capacity as heirs of the
deceased (ROBERTO C. CAYLAO, SONNY "BOY" PEREZ, DIONESIO
BAUTISTA, DANTE EVANGELIO, ADELFA ARIBE, DANILO ARJONA,
VICENTE CAMPOMANES, RONILO DOMUNICO) respectively; and (names
of sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO ALBASIA,
NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE MENSOLA, ALBERT
PITALBO, VICENTE ROSEL, RUBEN CARRIEDO, JOY CRUZ, HONORIO
LABAMBA, JR., EFREN MACARAIG, SOLOMON MANALOTO, ROMEO
DURAN, NILO TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE, GERARDO
COYOCA, LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR FONTANILLA,
WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS, TOMAS VALLOS,
ARNOLD ENAJE, MARIANITA DIMAPILIS, FRANCISCO ANGELES,
MARCELO ESGUERRA, JOSE FERRER, RODEL DE GUIA, ELVIS MENDOZA,
VICTORIANO QUIJANO, JOEY ADIME, RESIENO ADUL, ALBERTO
TARSONA, CARLOS ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE,
BENILDA ALONUEVO, EMMA ABADILLO, REYNALDO CABALLES, JR.,
JAIME CALDETO, FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE
DELGADO, JUN DELOS SANTOS, MARIO DEMASACA, FRANCISCO
GONZALES, ERNESTO GONZALES, RAMIRO JAMIL, JUAN LUCENA,
PERLITO SALAYSAY, JOHNNY SANTOS, MARCELO SANTOS, EMIL SAYAO,
BAYANI UMALI, REMIGIO MAHALIN, BONG MANLULO, ARMANDO
MATIENZO, CARLO MEDINA, LITO NOVENARIO, and ROSELLA ROBALE,
respondents.
G.R. No. 84645 March 19, 1993
ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA BAUTISTA,
CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA GUTIERREZ, NEMESIO
LAKINDANUM, PURITA YUMUL, MIGUEL ARABE, TERESITA ARJONA,
RONALDO CAMPOMANES AND CARMENCITA ARDONI VDA. DE
CAMPOMANES, ROGELIO DOMUNICO, in their capacity as heirs of the
deceased (ROBERTO C. CAYLAO, SONNY "BOY" PEREZ, DIONESIO
GRAMPA, ANGELITO GUTIERREZ, BERNABE LAKINDANUM, ROBERTO
YUMUL, LEOPOLDO ALONZO, ADELFA ARIBE, DANILO ARJONA, VICENTE
CAMPOMANES, RONILO DOMUNICO) respectively; and (names of sixty-
two injured victims) EDDIE AGUINALDO, FELICISIMO ALBASIA,
NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE MENSOLA, ALBERT
PITALBO, VICENTE ROSEL, RUBEN CARRIEDO, JOY CRUZ, HONORIO
LABAMBA, JR. EFREN MACARAIG, SOLOMON MANALOTO, ROMEO
DURAN, NILO TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE, GERARDO
COYOCA, LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR FONTANILLA,
WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS TOMAS VALLOS,
ARNOLD ENAJE, MARIANITA DIMAPILIS, FRANCISCO ANGELES,
MARCELO ESGUERRA, JOSE FERRER, RODEL DE GUIA, ELVIS MENDOZA,
VICTORINO QUIJANO, JOEY ADIME, RESIENO ADUL, ALBERTO TARSONA,
526
CARLOS ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE, BENILDA
ALONUEVO, EMMA ABADILLO, REYNALDO CABALLES, JR., JAIME
CALDETO, FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE
DELGADO, JUN DELOS SANTOS, MARIO DEMASACA, FRANCISCO
GONZALES, ERNESTO GONZALES, RAMIRO JAMIL, JUAN LUCENA,
PERLITO SALAYSAY, JOHNNY SANTOS, MARCELO SANTOS, EMIL SAYAO,
BAYANI UMALI, REMIGIO MAHALIN, BONG MANLULO, ARMANDO
MATIENZO, CARLO MEDINA, LITO NOVENARIO, ROSELLA ROBALE,
petitioners,
vs.
REPUBLIC OF THE PHILIPPINES, and HONORABLE EDILBERTO G.
SANDOVAL, Regional Trial Court of Manila, Branch 9, respondents.
The Solicitor General for the Republic of the Philippines.
Structural Alternative Legal Assistance for Grassroots for petitioners in
84645 & private respondents in 84607.
CAMPOS, JR., J.:
People may have already forgotten the tragedy that transpired on
January 22, 1987. It is quite ironic that then, some journalists called it a
Black Thursday, as a grim reminder to the nation of the misfortune that
befell twelve (12) rallyists. But for most Filipinos now, the Mendiola
massacre may now just as well be a chapter in our history books. For
those however, who have become widows and orphans, certainly they
would not settle for just that. They seek retribution for the lives taken
that will never be brought back to life again.
Hence, the heirs of the deceased, together with those injured (Caylao
group), instituted this petition, docketed as G.R. No. 84645, under
Section 1 of Rule 65 of the Rules of Court, seeking the reversal and
setting aside of the Orders of respondent Judge Sandoval,1 dated May 31
and August 8, 1988, dismissing the complaint for damages of herein
petitioners against the Republic of the Philippines in Civil Case No. 88-
43351.
Petitioner, the Republic of the Philippines, through a similar remedy,
docketed as G.R. No. 84607, seeks to set aside the Order of respondent
Judge dated May 31, 1988, in Civil Case No. 88-43351 entitled "Erlinda
Caylao, et al. vs. Republic of the Philippines, et al."
The pertinent portion of the questioned Order2 dated May 31, 1988, reads
as follows:
With respect however to the other defendants, the
impleaded Military Officers, since they are being charged
in their personal and official capacity, and holding them
liable, if at all, would not result in financial responsibility
of the government, the principle of immunity from suit
can not conveniently and correspondingly be applied to
them.
WHEREFORE, the case as against the defendant Republic
of the Philippines is hereby dismissed. As against the rest
of the defendants the motion to dismiss is denied. They
are given a period of ten (10) days from receipt of this
order within which to file their respective pleadings.
On the other hand, the Order3 , dated August 8, 1988, denied the motions
filed by both parties, for a reconsideration of the abovecited Order,
respondent Judge finding no cogent reason to disturb the said order.
The massacre was the culmination of eight days and seven nights of
encampment by members of the militant Kilusang Magbubukid sa
Pilipinas (KMP) at the then Ministry (now Department) of Agrarian
Reform (MAR) at the Philippine Tobacco Administration Building along
Elliptical Road in Diliman, Quezon City.
The farmers and their sympathizers presented their demands for what
they called "genuine agrarian reform". The KMP, led by its national
527
president, Jaime Tadeo, presented their problems and demands, among
which were: (a) giving lands for free to farmers; (b) zero retention of
lands by landlords; and (c) stop amortizations of land payments.
The dialogue between the farmers and the MAR officials began on
January 15, 1987. The two days that followed saw a marked increase in
people at the encampment. It was only on January 19, 1987 that Jaime
Tadeo arrived to meet with then Minister Heherson Alvarez, only to be
informed that the Minister can only meet with him the following day. On
January 20, 1987, the meeting was held at the MAR conference room.
Tadeo demanded that the minimum comprehensive land reform program
be granted immediately. Minister Alvarez, for his part, can only promise
to do his best to bring the matter to the attention of then President
Aquino, during the cabinet meeting on January 21, 1987.
Tension mounted the following day. The farmers, now on their seventh
day of encampment, barricaded the MAR premises and prevented the
employees from going inside their offices. They hoisted the KMP flag
together with the Philippine flag.
At around 6:30 p.m. of the same day, Minister Alvarez, in a meeting with
Tadeo and his leaders, advised the latter to instead wait for the
ratification of the 1987 Constitution and just allow the government to
implement its comprehensive land reform program. Tadeo, however,
countered by saying that he did not believe in the Constitution and that a
genuine land reform cannot be realized under a landlord-controlled
Congress. A heated discussion ensued between Tadeo and Minister
Alvarez. This notwithstanding, Minister Alvarez suggested a negotiating
panel from each side to meet again the following day.
On January 22, 1987, Tadeo's group instead decided to march to
Malacaang to air their demands. Before the march started, Tadeo talked
to the press and TV media. He uttered fiery words, the most telling of
which were:
". . . inalis namin ang barikada bilang kahilingan ng ating Presidente, pero
kinakailangan alisin din niya ang barikada sa Mendiola sapagkat bubutasin
din namin iyon at dadanak ang dugo . . . ."4
The farmers then proceeded to march to Malacaang, from Quezon
Memorial Circle, at 10:00 a.m. They were later joined by members of other
sectoral organizations such as the Kilusang Mayo Uno (KMU), Bagong
Alyansang Makabayan (BAYAN), League of Filipino Students (LFS) and
Kongreso ng Pagkakaisa ng Maralitang Lungsod (KPML).
At around 1:00 p.m., the marchers reached Liwasang Bonifacio where
they held a brief program. It was at this point that some of the marchers
entered the eastern side of the Post Office Building, and removed the
steel bars surrounding the garden. Thereafter, they joined the march to
Malacaang. At about 4:30 p.m., they reached C.M. Recto Avenue.
In anticipation of a civil disturbance, and acting upon reports received by
the Capital Regional Command (CAPCOM) that the rallyists would
proceed to Mendiola to break through the police lines and rush towards
Malacaang, CAPCOM Commander General Ramon E. Montao inspected
the preparations and adequacy of the government forces to quell
impending attacks.
OPLAN YELLOW (Revised) was put into effect. Task Force Nazareno
under the command of Col. Cesar Nazareno was deployed at the vicinity
of Malacaang. The civil disturbance control units of the Western Police
District under Police Brigadier General Alfredo S. Lim were also activated.
Intelligence reports were also received that the KMP was heavily
infiltrated by CPP/NPA elements and that an insurrection was impending.
The threat seemed grave as there were also reports that San Beda
College and Centro Escolar University would be forcibly occupied.
In its report, the Citizens' Mendiola Commission (a body specifically
tasked to investigate the facts surrounding the incident, Commission for
short) stated that the government anti-riot forces were assembled at
Mendiola in a formation of three phalanges, in the following manner:
(1) The first line was composed of policemen from police
stations Nos. 3, 4, 6, 7, 8, 9 and 10 and the Chinatown
detachment of the Western Police District. Police Colonel
528
Edgar Dula Torres, Deputy Superintendent of the Western
Police District, was designated as ground commander of
the CDC first line of defense. The WPD CDC elements were
positioned at the intersection of Mendiola and Legarda
Streets after they were ordered to move forward from
the top of Mendiola bridge. The WPD forces were in khaki
uniform and carried the standard CDC equipment
aluminum shields, truncheons and gas masks.
(2) At the second line of defense about ten (10) yards
behind the WPD policemen were the elements of the
Integrated National Police (INP) Field Force stationed at
Fort Bonifacio from the 61st and 62nd INP Field Force,
who carried also the standard CDC equipment
truncheons, shields and gas masks. The INP Field Force
was under the command of Police Major Demetrio dela
Cruz.
(3) Forming the third line was the Marine Civil Disturbance
Control Battalion composed of the first and second
companies of the Philippine Marines stationed at Fort
Bonifacio. The marines were all equipped with shields,
truncheons and M-16 rifles (armalites) slung at their
backs, under the command of Major Felimon B. Gasmin. The
Marine CDC Battalion was positioned in line formation ten
(10) yards farther behind the INP Field Force.
At the back of the marines were four (4) 6 x 6 army
trucks, occupying the entire width of Mendiola street,
followed immediately by two water cannons, one on each
side of the street and eight fire trucks, four trucks on each
side of the street. The eight fire trucks from Fire District I
of Manila under Fire Superintendent Mario C. Tanchanco,
were to supply water to the two water cannons.
Stationed farther behind the CDC forces were the two
Mobile Dispersal Teams (MDT) each composed of two
tear gas grenadiers, two spotters, an assistant grenadier,
a driver and the team leader.
In front of the College of the Holy Spirit near Gate 4 of
Malacaang stood the VOLVO Mobile Communications
Van of the Commanding General of CAPCOM/INP, General
Ramon E. Montao. At this command post, after General
Montao had conferred with TF Nazareno Commander,
Colonel Cezar Nazareno, about the adequacy and readiness
of his forces, it was agreed that Police General Alfredo S.
Lim would designate Police Colonel Edgar Dula Torres and
Police Major Conrado Francisco as negotiators with the
marchers. Police General Lim then proceeded to the WPD
CDC elements already positioned at the foot of Mendiola
bridge to relay to Police Colonel Torres and Police Major
Francisco the instructions that the latter would negotiate
with the marchers.5 (Emphasis supplied)
The marchers, at around 4:30 p.m., numbered about 10,000 to 15,000.
From C.M. Recto Avenue, they proceeded toward the police lines. No
dialogue took place between the marchers and the anti-riot squad. It was
at this moment that a clash occurred and, borrowing the words of the
Commission "pandemonium broke loose". The Commission stated in its
findings, to wit:
. . . There was an explosion followed by throwing of
pillboxes, stones and bottles. Steel bars, wooden clubs
and lead pipes were used against the police. The police
fought back with their shields and truncheons. The police
line was breached. Suddenly shots were heard. The
demonstrators disengaged from the government forces
and retreated towards C.M. Recto Avenue. But sporadic
firing continued from the government forces.
After the firing ceased, two MDTs headed by Lt. Romeo
Paquinto and Lt. Laonglaan Goce sped towards Legarda
Street and lobbed tear gas at the remaining rallyist still
grouped in the vicinity of Mendiola. After dispersing the
529
 crowd, the two MDTs, together with the two WPD MDTs,
proceeded to Liwasang Bonifacio upon order of General
Montao to disperse the rallyists assembled thereat.
Assisting the MDTs were a number of policemen from the
WPD, attired in civilian clothes with white head bands,
who were armed with long firearms.6 (Emphasis ours)
After the clash, twelve (12) marchers were officially confirmed dead,
although according to Tadeo, there were thirteen (13) dead, but he was
not able to give the name and address of said victim. Thirty-nine (39)
were wounded by gunshots and twelve (12) sustained minor injuries, all
belonging to the group of the marchers.
Of the police and military personnel, three (3) sustained gunshot wounds
and twenty (20) suffered minor physical injuries such as abrasions,
contusions and the like.
In the aftermath of the confrontation, then President Corazon C. Aquino
issued Administrative Order No. 11,7 (A.O. 11, for brevity) dated January
22, 1987, which created the Citizens' Mendiola Commission. The body was
composed of retired Supreme Court Justice Vicente Abad Santos as
Chairman, retired Supreme Court Justice Jose Y. Feria and Mr. Antonio U.
Miranda, both as members. A.O. 11 stated that the Commission was
created precisely for the "purpose of conducting an investigation of the
disorder, deaths, and casualties that took place in the vicinity of Mendiola
Bridge and Mendiola Street and Claro M. Recto Avenue, Manila, in the
afternoon of January 22, 1987". The Commission was expected to have
submitted its findings not later than February 6, 1987. But it failed to do
so. Consequently, the deadline was moved to February 16, 1987 by
Administrative Order No. 13. Again, the Commission was unable to meet
this deadline. Finally, on February 27, 1987, it submitted its report, in
accordance with Administrative Order No. 17, issued on February 11, 1987.
In its report, the Commission recapitulated its findings, to wit:
(1) The march to Mendiola of the KMP led by Jaime Tadeo,
together with the other sectoral groups, was not covered
by any permit as required under Batas Pambansa Blg. 880,
the Public Assembly Act of 1985, in violation of paragraph
(a) Section 13, punishable under paragraph (a), Section 14
of said law.
(2) The crowd dispersal control units of the police and the
military were armed with .38 and .45 caliber handguns,
and M-16 armalites, which is a prohibited act under
paragraph 4(g), Section 13, and punishable under
paragraph (b), Section 14 of Batas Pambansa Blg. 880.
(3) The security men assigned to protect the WPD, INP
Field Force, the Marines and supporting military units, as
well as the security officers of the police and military
commanders were in civilian attire in violation of
paragraph (a), Section 10, Batas Pambansa 880.
(4) There was unnecessary firing by the police and military
crowd dispersal control units in dispersing the marchers, a
prohibited act under paragraph (e), Section 13, and
punishable under paragraph (b), Section 14, Batas
Pambansa Blg. 880.
(5) The carrying and use of steel bars, pillboxes, darts,
lead pipe, wooden clubs with spikes, and guns by the
marchers as offensive weapons are prohibited acts
punishable under paragraph (g), Section 13, and
punishable under paragraph (e), Section 14 of Batas
Pambansa Blg. 880.
(6) The KMP farmers broke off further negotiations with
the MAR officials and were determined to march to
Malacaang, emboldened as they are, by the
inflammatory and incendiary utterances of their leader,
Jaime Tadeo "bubutasin namin ang barikada . .
Dadanak and dugo . . . Ang nagugutom na magsasaka ay
gagawa ng sariling butas. . .
530
 (7) There was no dialogue between the rallyists and the
government forces. Upon approaching the intersections
of Legarda and Mendiola, the marchers began pushing
the police lines and penetrated and broke through the
first line of the CDC contingent.
(8) The police fought back with their truncheons and
shields. They stood their ground but the CDC line was
breached. There ensued gunfire from both sides. It is not
clear who started the firing.
(9) At the onset of the disturbance and violence, the
water cannons and tear gas were not put into effective
use to disperse the rioting crowd.
(10) The water cannons and fire trucks were not put into
operation because (a) there was no order to use them; (b)
they were incorrectly prepositioned; and (c) they were
out of range of the marchers.
(11) Tear gas was not used at the start of the disturbance
to disperse the rioters. After the crowd had dispersed and
the wounded and dead were being carried away, the
MDTs of the police and the military with their tear gas
equipment and components conducted dispersal
operations in the Mendiola area and proceeded to
Liwasang Bonifacio to disperse the remnants of the
marchers.
(12) No barbed wire barricade was used in Mendiola but
no official reason was given for its absence.8
From the results of the probe, the Commission recommended9 the
criminal prosecution of four unidentified, uniformed individuals, shown
either on tape or in pictures, firing at the direction of the marchers. In
connection with this, it was the Commission's recommendation that the
National Bureau of Investigation (NBI) be tasked to undertake
investigations regarding the identities of those who actually fired their
guns that resulted in the death of or injury to the victims of the incident.
The Commission also suggested that all the commissioned officers of
both the Western Police District and the INP Field Force, who were armed
during the incident, be prosecuted for violation of paragraph 4(g) of
Section 13, Batas Pambansa Blg. 880, the Public Assembly Act of 1985.
The Commission's recommendation also included the prosecution of the
marchers, for carrying deadly or offensive weapons, but whose identities
have yet to be established. As for Jaime Tadeo, the Commission said that
he should be prosecuted both for violation of paragraph (a), Section 13,
Batas Pambansa Blg. 880 for holding the rally without a permit and for
violation of Article 142, as amended, of the Revised Penal Code for inciting
to sedition. As for the following officers, namely: (1) Gen. Ramon E.
Montao; (2) Police Gen. Alfredo S. Lim; (3) Police Gen. Edgar Dula Torres;
(4) Police Maj. Demetrio dela Cruz; (5) Col. Cezar Nazareno; and (5) Maj.
Felimon Gasmin, for their failure to make effective use of their skill and
experience in directing the dispersal operations in Mendiola,
administrative sanctions were recommended to be imposed.
The last and the most significant recommendation of the Commission
was for the deceased and wounded victims of the Mendiola incident to
be compensated by the government. It was this portion that petitioners
(Caylao group) invoke in their claim for damages from the government.
Notwithstanding such recommendation, no concrete form of
compensation was received by the victims. Thus, on July 27, 1987, herein
petitioners, (Caylao group) filed a formal letter of demand for
compensation from the Government. 10 This formal demand was
indorsed by the office of the Executive Secretary to the Department of
Budget and Management (DBM) on August 13, 1987. The House
Committee on Human Rights, on February 10, 1988, recommended the
expeditious payment of compensation to the Mendiola victims. 11
After almost a year, on January 20, 1988, petitioners (Caylao group) were
constrained to institute an action for damages against the Republic of the
Philippines, together with the military officers, and personnel involved in
the Mendiola incident, before the trial court. The complaint was docketed
as Civil Case No. 88-43351.
531
On February 23, 1988, the Solicitor General filed a Motion to Dismiss on
the ground that the State cannot be sued without its consent. Petitioners
opposed said motion on March 16, 1988, maintaining that the State has
waived its immunity from suit and that the dismissal of the instant action
is contrary to both the Constitution and the International Law on Human
Rights.
Respondent Judge Sandoval, in his first questioned Order, dismissed the
complaint as against the Republic of the Philippines on the ground that
there was no waiver by the State. Petitioners (Caylao group) filed a
Motion for Reconsideration therefrom, but the same was denied by
respondent judge in his Order dated August 8, 1988. Consequently,
Caylao and her co-petitioners filed the instant petition.
On the other hand, the Republic of the Philippines, together with the
military officers and personnel impleaded as defendants in the court
below, filed its petition for certiorari.
Having arisen from the same factual beginnings and raising practically
identical issues, the two (2) petitions were consolidated and will
therefore be jointly dealt with and resolved in this Decision.
The resolution of both petitions revolves around the main issue of
whether or not the State has waived its immunity from suit.
Petitioners (Caylao group) advance the argument that the State has
impliedly waived its sovereign immunity from suit. It is their considered
view that by the recommendation made by the Commission for the
government to indemnify the heirs and victims of the Mendiola incident
and by the public addresses made by then President Aquino in the
aftermath of the killings, the State has consented to be sued.
Under our Constitution the principle of immunity of the government from
suit is expressly provided in Article XVI, Section 3. The principle is based
on the very essence of sovereignty, and on the practical ground that
there can be no legal right as against the authority that makes the law on
which the right depends. 12 It also rests on reasons of public policy
that public service would be hindered, and the public endangered, if the
sovereign authority could be subjected to law suits at the instance of
every citizen and consequently controlled in the uses and dispositions of
the means required for the proper administration of the government. 13
This is not a suit against the State with its consent.
Firstly, the recommendation made by the Commission regarding
indemnification of the heirs of the deceased and the victims of the
incident by the government does not in any way mean that liability
automatically attaches to the State. It is important to note that A.O. 11
expressly states that the purpose of creating the Commission was to have
a body that will conduct an "investigation of the disorder, deaths and
casualties that took place." 14 In the exercise of its functions, A.O. 11
provides guidelines, and what is relevant to Our discussion reads:
1 Its conclusions regarding the existence of probable
cause for the commission of any offense and of the
persons probably guilty of the same shall be sufficient
compliance with the rules on preliminary investigation
and the charges arising therefrom may be filed directly
with the proper court. 15
In effect, whatever may be the findings of the Commission, the same shall
only serve as the cause of action in the event that any party decides to
litigate his/her claim. Therefore, the Commission is merely a preliminary
venue. The Commission is not the end in itself. Whatever
recommendation it makes cannot in any way bind the State immediately,
such recommendation not having become final and, executory. This is
precisely the essence of it being a fact-finding body.
Secondly, whatever acts or utterances that then President Aquino may
have done or said, the same are not tantamount to the State having
waived its immunity from suit. The President's act of joining the
marchers, days after the incident, does not mean that there was an
admission by the State of any liability. In fact to borrow the words of
petitioners (Caylao group), "it was an act of solidarity by the government
with the people". Moreover, petitioners rely on President Aquino's
532
speech promising that the government would address the grievances of
the rallyists. By this alone, it cannot be inferred that the State has
admitted any liability, much less can it be inferred that it has consented to
the suit.
Although consent to be sued may be given impliedly, still it cannot be
maintained that such consent was given considering the circumstances
obtaining in the instant case.
Thirdly, the case does not qualify as a suit against the State.
Some instances when a suit against the State is proper are: 16
(1) When the Republic is sued by name;
(2) When the suit is against an unincorporated government agency;
(3) When the, suit is on its face against a government officer but the case
is such that ultimate liability will belong not to the officer but to the
government.
While the Republic in this case is sued by name, the ultimate liability does
not pertain to the government. Although the military officers and
personnel, then party defendants, were discharging their official
functions when the incident occurred, their functions ceased to be official
the moment they exceeded their authority. Based on the Commission
findings, there was lack of justification by the government forces in the
use of firearms. 17 Moreover, the members of the police and military
crowd dispersal units committed a prohibited act under B.P. Blg. 880 18
as there was unnecessary firing by them in dispersing the marchers. 19
As early as 1954, this Court has pronounced that an officer cannot shelter
himself by the plea that he is a public agent acting under the color of his
office when his acts are wholly without authority. 20 Until recently in
1991, 21 this doctrine still found application, this Court saying that
immunity from suit cannot institutionalize irresponsibility and non-
accountability nor grant a privileged status not claimed by any other
official of the Republic. The military and police forces were deployed to
ensure that the rally would be peaceful and orderly as well as to
guarantee the safety of the very people that they are duty-bound to
protect. However, the facts as found by the trial court showed that they
fired at the unruly crowd to disperse the latter.
While it is true that nothing is better settled than the general rule that a
sovereign state and its political subdivisions cannot be sued in the courts
except when it has given its consent, it cannot be invoked by both the
military officers to release them from any liability, and by the heirs and
victims to demand indemnification from the government. The principle of
state immunity from suit does not apply, as in this case, when the relief
demanded by the suit requires no affirmative official action on the part of
the State nor the affirmative discharge of any obligation which belongs to
the State in its political capacity, even though the officers or agents who
are made defendants claim to hold or act only by virtue of a title of the
state and as its agents and servants. 22 This Court has made it quite clear
that even a "high position in the government does not confer a license to
persecute or recklessly injure another." 23
The inescapable conclusion is that the State cannot be held civilly liable
for the deaths that followed the incident. Instead, the liability should fall
on the named defendants in the lower court. In line with the ruling of this
court in Shauf vs. Court of Appeals, 24 herein public officials, having been
found to have acted beyond the scope of their authority, may be held
liable for damages.
WHEREFORE, finding no reversible error and no grave abuse of discretion
committed by respondent Judge in issuing the questioned orders, the
instant petitions are hereby DISMISSED.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide,
Jr., Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Gutierrez, Jr., J., is on leave.
533
 16 J.G. BERNAS, CONSTITUTIONAL STRUCTURE AND
POWERS OF GOVERNMENT, NOTES AND CASES 414 (1st
# Footnotes ed., 1991).

1 Judge Edilberto G. Sandoval was the presiding judge of 17 Rollo of G.R. No. 84607, pp. 196-197.
Branch 9 of Regional Trial Court, Manila.
18 Sec. 13. Prohibited Acts. The following shall
2 Rollo of G.R. No. 84607, p. 65. constitute violations of this Act:

3 Ibid., pp. 73-76. xxx xxx xxx

4 Ibid., p. 80. (e) The unnecessary firing of firearms by a member of any

law enforcement agency or any person to disperse the
5 Ibid., pp. 82-84. public assembly;

6 Ibid., pp. 84-85. xxx xxx xxx

7 Ibid., p. 158. 19 Supra, note 17 at p. 102.

8 Ibid., pp. 102-103. 20 Festejo vs. Fernando, 94 Phil. 504 (1954) citing 43 Am.
Jur. 86-90.
9 Ibid., pp. 107-109.
21 Chavez vs. Sandiganbayan, 193 SCRA 282 (1991).
10 Rollo, G.R. No. 84645, pp. 36-38.
22 Ruiz vs. Cabahug, 102 Phil. 110 (1957).
11 Ibid., pp. 125-126.
23 Supra, note 19.
12 Kawananakoa vs. Polyblank, 205 U.S. 349-353, 51 L. Ed.
834 (1907). 24 191 SCRA 713 (1990).

13 The Siren vs. United States, 7 Wall. 152, 19 L. Ed. 129

(1869).

14 Supra, note 7.

15 Ibid.

534
 Republic of the Philippines On March 27, 1958 Amigable's counsel wrote the President of the
SUPREME COURT Philippines, requesting payment of the portion of her lot which had been
Manila appropriated by the government. The claim was indorsed to the Auditor
General, who disallowed it in his 9th Indorsement dated December 9,
EN BANC 1958. A copy of said indorsement was transmitted to Amigable's counsel
by the Office of the President on January 7, 1959.

On February 6, 1959 Amigable filed in the court a quo a complaint, which

G.R. No. L-26400 February 29, 1972 was later amended on April 17, 1959 upon motion of the defendants,
against the Republic of the Philippines and Nicolas Cuenca, in his capacity
VICTORIA AMIGABLE, plaintiff-appellant, as Commissioner of Public Highways for the recovery of ownership and
vs. possession of the 6,167 square meters of land traversed by the Mango
NICOLAS CUENCA, as Commissioner of Public Highways and REPUBLIC and Gorordo Avenues. She also sought the payment of compensatory
OF THE PHILIPPINES, defendants-appellees. damages in the sum of P50,000.00 for the illegal occupation of her land,
moral damages in the sum of P25,000.00, attorney's fees in the sum of
P5,000.00 and the costs of the suit.

MAKALINTAL, J.:p
This is an appeal from the decision of the Court of First Instance of Cebu
in its Civil Case No. R-5977, dismissing the plaintiff's complaint.
Victoria Amigable, the appellant herein, is the registered owner of Lot No.
639 of the Banilad Estate in Cebu City as shown by Transfer Certificate of
Title No. T-18060, which superseded Transfer Certificate of Title No. RT-
3272 (T-3435) issued to her by the Register of Deeds of Cebu on February
1, 1924. No annotation in favor of the government of any right or interest
in the property appears at the back of the certificate. Without prior
expropriation or negotiated sale, the government used a portion of said
lot, with an area of 6,167 square meters, for the construction of the
Mango and Gorordo Avenues.
It appears that said avenues were already existing in 1921 although "they
were in bad condition and very narrow, unlike the wide and beautiful
avenues that they are now," and "that the tracing of said roads was
begun in 1924, and the formal construction in
1925." *
Within the reglementary period the defendants filed a joint answer
denying the material allegations of the complaint and interposing the
following affirmative defenses, to wit: (1) that the action was premature,
the claim not having been filed first with the Office of the Auditor
General; (2) that the right of action for the recovery of any amount which
might be due the plaintiff, if any, had already prescribed; (3) that the
action being a suit against the Government, the claim for moral damages,
attorney's fees and costs had no valid basis since as to these items the
Government had not given its consent to be sued; and (4) that inasmuch
as it was the province of Cebu that appropriated and used the area
involved in the construction of Mango Avenue, plaintiff had no cause of
action against the defendants.
During the scheduled hearings nobody appeared for the defendants
notwithstanding due notice, so the trial court proceeded to receive the
plaintiff's evidence ex parte. On July 29, 1959 said court rendered its
decision holding that it had no jurisdiction over the plaintiff's cause of
action for the recovery of possession and ownership of the portion of her
lot in question on the ground that the government cannot be sued
without its consent; that it had neither original nor appellate jurisdiction
to hear, try and decide plaintiff's claim for compensatory damages in the
535
sum of P50,000.00, the same being a money claim against the
government; and that the claim for moral damages had long prescribed,
nor did it have jurisdiction over said claim because the government had
not given its consent to be sued. Accordingly, the complaint was
dismissed. Unable to secure a reconsideration, the plaintiff appealed to
the Court of Appeals, which subsequently certified the case to Us, there
being no question of fact involved.
The issue here is whether or not the appellant may properly sue the
government under the facts of the case.
In the case of Ministerio vs. Court of First Instance of Cebu,1 involving a
claim for payment of the value of a portion of land used for the widening
of the Gorordo Avenue in Cebu City, this Court, through Mr. Justice
Enrique M. Fernando, held that where the government takes away
property from a private landowner for public use without going through
the legal process of expropriation or negotiated sale, the aggrieved party
may properly maintain a suit against the government without thereby
violating the doctrine of governmental immunity from suit without its
consent. We there said: .
... . If the constitutional mandate that the owner be
compensated for property taken for public use were to be
respected, as it should, then a suit of this character should
not be summarily dismissed. The doctrine of
governmental immunity from suit cannot serve as an
instrument for perpetrating an injustice on a citizen. Had
the government followed the procedure indicated by the
governing law at the time, a complaint would have been
filed by it, and only upon payment of the compensation
fixed by the judgment, or after tender to the party
entitled to such payment of the amount fixed, may it
"have the right to enter in and upon the land so
condemned, to appropriate the same to the public use
defined in the judgment." If there were an observance of
procedural regularity, petitioners would not be in the sad
plaint they are now. It is unthinkable then that precisely
because there was a failure to abide by what the law
requires, the government would stand to benefit. It is just
as important, if not more so, that there be fidelity to legal
norms on the part of officialdom if the rule of law were to
be maintained. It is not too much to say that when the
government takes any property for public use, which is
conditioned upon the payment of just compensation, to
be judicially ascertained, it makes manifest that it submits
to the jurisdiction of a court. There is no thought then
that the doctrine of immunity from suit could still be
appropriately invoked.
Considering that no annotation in favor of the government appears at the
back of her certificate of title and that she has not executed any deed of
conveyance of any portion of her lot to the government, the appellant
remains the owner of the whole lot. As registered owner, she could bring
an action to recover possession of the portion of land in question at
anytime because possession is one of the attributes of ownership.
However, since restoration of possession of said portion by the
government is neither convenient nor feasible at this time because it is
now and has been used for road purposes, the only relief available is for
the government to make due compensation which it could and should
have done years ago. To determine the due compensation for the land,
the basis should be the price or value thereof at the time of the taking.2
As regards the claim for damages, the plaintiff is entitled thereto in the
form of legal interest on the price of the land from the time it was taken
up to the time that payment is made by the government.3 In addition, the
government should pay for attorney's fees, the amount of which should
be fixed by the trial court after hearing.
WHEREFORE, the decision appealed from is hereby set aside and the case
remanded to the court a quo for the determination of compensation,
including attorney's fees, to which the appellant is entitled as above
indicated. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando, Teehankee,
Barredo, Villamor and Makasiar JJ., concur.
536
Footnotes

* Decision, Record on Appeal, p. 12.

1 G.R. No. L-31635, August 31, 1971 (40 SCRA 464).

2 Alfonso vs. City of Pasay (106 Phil. 1017).

3 Alfonso vs. City of Pasay, supra.

537