Constitutional Law 1 Cases

Republic of the Philippines
SUPREME COURT
Manila
I.
EXECUTION
OF
THE
NECESSARY
CONTRACTS WITH GSIS/MHC
1. The Highest Bidder must comply with the conditions set
forth below by October 23, 1995 (reset to November 3,
1995) or the Highest Bidder will lose the right to purchase
the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
EN BANC
G.R. No. 122156 February 3, 1997

MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL, respondents.
a. The Highest Bidder must negotiate and

execute
with
the
GSIS/MHC
the
Management
Contract,
International
Marketing/Reservation System Contract or
other type of contract specified by the
Highest Bidder in its strategic plan for the
Manila Hotel. . . .
BELLOSILLO, J.:
b. The Highest Bidder must execute the

Stock Purchase and Sale Agreement with
GSIS . . . .
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant
of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos, 1 is in oked
by petitioner in its bid to acquire 51% of the shares of the Manila Hotel
Corporation (MHC) which owns the historic Manila Hotel. Opposing,
respondents maintain that the provision is not self-executing but requires
an implementing legislation for its enforcement. Corollarily, they ask
whether the 51% shares form part of the national economy and patrimony
covered by the protective mantle of the Constitution.
K.
DECLARATION
OF
THE
BIDDER/STRATEGIC PARTNER
WINNING
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
The controversy arose when respondent Government Service Insurance

System (GSIS), pursuant to the privatization program of the Philippine
Government under Proclamation No. 50 dated 8 December 1986, decided
to sell through public bidding 30% to 51% of the issued and outstanding
shares of respondent MHC. The winning bidder, or the eventual "strategic
partner," is to provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the
profitability and performance of the Manila Hotel. 2 In a close bidding held
on 18 September 1995 only two (2) bidders participated: petitioner Manila
Prince Hotel Corporation, a Filipino corporation, which offered to buy 51%
of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad,
a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the
same number of shares at P44.00 per share, or P2.42 more than the bid of
petitioner.
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.
Pertinent provisions of the bidding rules prepared by respondent GSIS state
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.
fauna and all marine wealth in its territorial sea, and exclusive marine zone
as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987
Constitution. According to respondents, while petitioner speaks of the
guests who have slept in the hotel and the events that have transpired
therein which make the hotel historic, these alone do not make the hotel
fall under the patrimony of the nation. What is more, the mandate of the
Constitution is addressed to the State, not to respondent GSIS which
possesses a personality of its own separate and distinct from the
Philippines as a State.
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.
Third, granting that the Manila Hotel forms part of the national patrimony,
the constitutional provision invoked is still inapplicable since what is being
sold is only 51% of the outstanding shares of the corporation, not the hotel
building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony.
Moreover, if the disposition of the shares of the MHC is really contrary to
the Constitution, petitioner should have questioned it right from the
beginning and not after it had lost in the bidding.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the
Filipino nation and has practically become a historical monument which
reflects the vibrancy of Philippine heritage and culture. It is a proud legacy
of an earlier generation of Filipinos who believed in the nobility and
sacredness of independence and its power and capacity to release the full
potential of the Filipino people. To all intents and purposes, it has become
a part of the national patrimony. 6 Petitioner also argues that since 51% of
the shares of the MHC carries with it the ownership of the business of the
hotel which is owned by respondent GSIS, a government-owned and
controlled corporation, the hotel business of respondent GSIS being a part
of the tourism industry is unquestionably a part of the national economy.
Thus, any transaction involving 51% of the shares of stock of the MHC is
clearly covered by the term national economy, to which Sec. 10, second
par., Art. XII, 1987 Constitution, applies. 7
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding
rules which provides that if for any reason, the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share, is
misplaced. Respondents postulate that the privilege of submitting a
matching bid has not yet arisen since it only takes place if for any reason,
the Highest Bidder cannot be awarded the Block of Shares. Thus the
submission by petitioner of a matching bid is premature since Renong
Berhad could still very well be awarded the block of shares and the
condition giving rise to the exercise of the privilege to submit a matching
bid had not yet taken place.
It is also the thesis of petitioner that since Manila Hotel is part of the
national patrimony and its business also unquestionably part of the
national economy petitioner should be preferred after it has matched the
bid offer of the Malaysian firm. For the bidding rules mandate that if for
any reason, the Highest Bidder cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share. 8
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.
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
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
Second, granting that this provision is self-executing, Manila Hotel does not
fall under the term national patrimony which only refers to lands of the
public domain, waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and
2
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.
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-avis Filipinos who are not qualified. So, why
do we not make it clear? To qualified
Filipinos as against aliens?
Admittedly, some constitutions are merely declarations of policies and

principles. Their provisions command the legislature to enact laws and
carry 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
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)
As against constitutions of the past, modern constitutions have been

generally drafted upon a different principle and have often become in
effect extensive codes of laws intended to operate directly upon the people
in a manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a
legislative body. Hence, unless it is expressly provided that a legislative act
is necessary to enforce a constitutional mandate, the presumption now is
that all provisions of the constitution are self-executing If the constitutional
provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the
mandate of the fundamental law. 14 This can be cataclysmic. That is why
the prevailing view is, as it has always been, that
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 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
3
In self-executing constitutional provisions, the legislature may still enact

legislation to facilitate the exercise of powers directly granted by the
constitution, further the operation of such a provision, prescribe a practice
to be used for its enforcement, provide a convenient remedy for the
protection of the rights secured or the determination thereof, or place
reasonable safeguards around the exercise of the right. The mere fact that
legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such a
provision ineffective in the absence of such legislation. The omission from a
constitution of any express provision for a remedy for enforcing a right or
liability is not necessarily an indication that it was not intended to be selfexecuting. 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.
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.
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 selfexecuting. 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
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.
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
Manila Hotel has become a landmark a living testimonial of Philippine

heritage. While it was restrictively an American hotel when it first opened
in 1912, it immediately evolved to be truly Filipino, Formerly a concourse
for the elite, it has since then become the venue of various significant
events which have shaped Philippine history. It was called the Cultural
Center of the 1930's. It was the site of the festivities during the
inauguration of the Philippine Commonwealth. Dubbed as the Official
Guest House of the Philippine Government. it plays host to dignitaries and
official visitors who are accorded the traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila
Hotel: The Heart and Memory of a City. 37During World War II the hotel was
4
converted by the Japanese Military Administration into a military

headquarters. When the American forces returned to recapture Manila the
hotel was selected by the Japanese together with Intramuros as the two (2)
places fro their final stand. Thereafter, in the 1950's and 1960's, the hotel
became the center of political activities, playing host to almost every
political convention. In 1970 the hotel reopened after a renovation and
reaped numerous international recognitions, an acknowledgment of the
Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup
d' etatwhere an aspirant for vice-president was "proclaimed" President of
the Philippine Republic.
we have to raise a question. Suppose it is a

corporation that is 80-percent Filipino, do
we not give it preference?
MR. DAVIDE. The Nolledo amendment
would refer to an individual Filipino. What
about a corporation wholly owned by
Filipino citizens?
MR. MONSOD. At least 60 percent, Madam
President.
For more than eight (8) decades Manila Hotel has bore mute witness to the
triumphs and failures, loves and frustrations of the Filipinos; its existence is
impressed with public interest; its own historicity associated with our
struggle for sovereignty, independence and nationhood. Verily, Manila
Hotel has become part of our national economy and patrimony. For sure,
51% of the equity of the MHC comes within the purview of the
constitutional shelter for it comprises the majority and controlling stock, so
that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be
disassociated from the hotel and the land on which the hotel edifice
stands. Consequently, we cannot sustain respondents' claim that
theFilipino First Policy provision is not applicable since what is being sold is
only 51% of the outstanding shares of the corporation, not the Hotel
building nor the land upon which the building stands. 38
MR. DAVIDE. Is that the intention?

MR. MONSOD. Yes, because, in fact, we
would be limiting it if we say that the
preference should only be 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.
President. 39
The argument is pure sophistry. The term qualified Filipinos as used in Our
Constitution also includes corporations at least 60% of which is owned by
Filipinos. This is very clear from the proceedings of the 1986 Constitutional
Commission
We
agree,
Madam
xxx xxx xxx

MR. RODRIGO. Before we vote, may I
request that the amendment be read
again.
THE PRESIDENT. Commissioner Davide is

recognized.
MR. DAVIDE. I would like to introduce an
amendment to the Nolledo amendment.
And the amendment would consist in
substituting
the
words
"QUALIFIED
FILIPINOS" with the following: "CITIZENS OF
THE PHILIPPINES OR CORPORATIONS OR
ASSOCIATIONS
WHOSE
CAPITAL
OR
CONTROLLING STOCK IS WHOLLY OWNED
BY SUCH CITIZENS.
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
xxx xxx xxx
The phrase preference to qualified Filipinos was explained thus
MR.
MONSOD.
Madam
President,
apparently the proponent is agreeable, but
5
MR. FOZ. Madam President, I would like to

request Commissioner Nolledo to please
restate his amendment so that I can ask a
question.
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.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS,

PRIVILEGES AND CONCESSIONS COVERING
THE NATIONAL ECONOMY AND PATRIMONY,
THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
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."
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?
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
MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified
in some aspects than the Filipino
enterprise, will the Filipino still be
preferred?
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
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 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
The exchange of views in the sessions of the Constitutional Commission

regarding the subject provision was still further clarified by Commissioner
Nolledo 43
Paragraph 2 of Section 10 explicitly mandates the "ProFilipino" bias in all economic concerns. It is better known as
the FILIPINO FIRST Policy . . . This provision was never
found in previous Constitutions . . . .
6
command. That is not how constitutional government

operates. 45
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.
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
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this
to other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of
price
per
share. 47 Certainly, the constitutional mandate itself is reason enough not
to award the block of shares immediately to the foreign bidder
notwithstanding its submission of a higher, or even the highest, bid. In fact,
we cannot conceive of a stronger reason than the constitutional injunction
itself.
In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering
the national economy and patrimony, thereby exceeding the bid of a
Filipino, there is no question that the Filipino will have to be allowed to
match the bid of the foreign entity. And if the Filipino matches the bid of a
foreign firm the award should go to the Filipino. It must be so if we are to
give life and meaning to the Filipino First Policy provision of the 1987
Constitution. For, while this may neither be expressly stated nor
contemplated in the bidding rules, the constitutional fiat is, omnipresent to
be simply disregarded. To ignore it would be to sanction a perilous skirting
of the basic law.
When the Constitution addresses the State it refers not only to the people
but also to the government as elements of the State. After all, government
is composed of three (3) divisions of power legislative, executive and
judicial. Accordingly, a constitutional mandate directed to the State is
correspondingly directed to the three(3) branches of government. It is
undeniable that in this case the subject constitutional injunction is
addressed among others to the Executive Department and respondent
GSIS, a government instrumentality deriving its authority from the State.
This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the
Philippines are understood to be always open to public scrutiny. These are
given factors which investors must consider when venturing into business
in a foreign jurisdiction. Any person therefore desiring to do business in the
Philippines or with any of its agencies or instrumentalities is presumed to
know his rights and obligations under the Constitution and the laws of the
forum.
It should be stressed that while the Malaysian firm offered the higher bid it
is not yet the winning bidder. The bidding rules expressly provide that the
highest bidder shall only be declared the winning bidder after it has
negotiated and executed the necessary contracts, and secured the
requisite approvals. Since the "Filipino First Policy provision of the
Constitution bestows preference on qualified Filipinos the mere tending of
the highest bid is not an assurance that the highest bidder will be declared
the winning bidder. Resultantly, respondents are not bound to make the
award yet, nor are they under obligation to enter into one with the highest
bidder. For in choosing the awardee respondents are mandated to abide by
the dictates of the 1987 Constitution the provisions of which are presumed
to be known to all the bidders and other interested parties.
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.
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
7
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.
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
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.
Nationalism is inherent, in the very concept of the Philippines being a

democratic and republican state, with sovereignty residing in the Filipino
people and from whom all government authority emanates. In nationalism,
the happiness and welfare of the people must be the goal. The nation-state
can have no higher purpose. Any interpretation of any constitutional
provision must adhere to such basic concept. Protection of foreign
investments, while laudible, is merely a policy. It cannot override the
demands of nationalism. 50
The 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
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
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.
This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark this Grand Old Dame of
hotels in Asia to a total stranger. For, indeed, the conveyance of this epic
exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation
8
of a nation's soul for some pieces of foreign silver. And so we ask: What
advantage, which cannot be equally drawn from a qualified Filipino, can be
gained by the Filipinos Manila Hotel and all that it stands for is sold to
a non-Filipino? How much of national pride will vanish if the nation's
cultural heritage is entrusted to a foreign entity? On the other hand, how
much dignity will be preserved and realized if the national patrimony is
safekept in the hands of a qualified, zealous and well-meaning Filipino?
This is the plain and simple meaning of the Filipino First Policy provision of
the Philippine Constitution. And this Court, heeding the clarion call of the
Constitution and accepting the duty of being the elderly watchman of the
nation, will continue to respect and protect the sanctity of the Constitution.
G.R. No. L-35940 January 22, 1973

GERARDO ROXAS, etc., et al. petitioners,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35941 January 22, 1973
EDDIE B. MONTECLARO, petitioner,
vs.
THE COMMISSION ON ELECTIONS, et al., respondents.
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.
G.R. No. L-35942 January 22, 1973

SEDFREY A. ORDOEZ, et al., petitioners,
vs.
THE NATIONAL TREASURER OF THE PHILIPPINES, et al., respondents.
G.R. No. L-35948 January 22, 1973
VIDAL TAN, et al., petitioners,
vs.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ.,
concur.
G.R. No. L-35953 January 22, 1973

SUPREME COURT
Manila
JOSE W. DIOKNO, et al., petitioners,

vs.
THE COMMISSION ON ELECTIONS, respondents.
EN BANC
G.R. No. L-35961 January 22, 1973

JACINTO JIMENEZ, petitioner,
vs.
G.R. No. L-35925 January 22, 1973

CHARITO PLANAS, petitioner,
vs.
G.R. No. L-35965 January 22, 1973

RAUL M. GONZALES, petitioner,
vs.
THE HONORABLE COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35929 January 22, 1973

PABLO C. SANIDAD, petitioner,
vs.
G.R. No. L-35979 January 22, 1973
ERNESTO HIDALGO, petitioner,

vs.
Philippines. The next day, November 30, 1972, the President of the
Philippines issued Presidential Decree No. 73, "submitting to the Filipino
people for ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention, and
appropriating funds therefor," as well as setting the plebiscite for said
ratification or rejection of the Proposed Constitution on January 15, 1973.
Ramon A. Gonzales for petitioner Charito Planas.

Pablito V. Sanidad and Gerardo L. Catipon for petitioner Pablo C. Sanidad.
Soon after, or on December 7, 1972, Charito Planas filed, with this Court,
Case G. R. No. L-35925, against the Commission on Elections, the Treasurer
of the Philippines and the Auditor General, to enjoin said "respondents or
their agents from implementing Presidential Decree No. 73, in any manner,
until further orders of the Court," upon the grounds, inter alia, that said
Presidential Decree "has no force and effect as law because the calling ...
of such plebiscite, the setting of guidelines for the conduct of the same,
the prescription of the ballots to be used and the question to be answered
by the voters, and the appropriation of public funds for the purpose, are, by
the Constitution, lodged exclusively in Congress ...," and "there is no
proper submission to the people of said Proposed Constitution set for
January 15, 1973, there being no freedom of speech, press and assembly,
and there being no sufficient time to inform the people of the contents
thereof."
Jovito R. Salonga and Associates and Rodrigo Law Office for petitioners
Gerardo Roxas, etc., et al.
Quijano and Arroyo for petitioner Eddie B. Monteclaro.
Sedfrey A. Ordonez and Associates for petitioners Sedfrey A. Ordonez, et
al.
Lorenzo M. Taada for petitioners Vidal Tan, et al.
Francis E. Garchitorena for petitioners Jose W. Diokno, et al.
Jacinto Jimenez in his own behalf.
Substantially identical actions were filed, on December 8, 1972, by Pablo C.

Sanidad against the Commission on Elections (Case G.R. No. L-35929); on
December 11, 1972, by Gerardo Roxas, et al., against the Commission on
Elections, the Director of Printing, the National Treasurer and the Auditor
General (Case G.R. No. L-35940), by Eddie B. Monteclaro against the
Commission on Elections and the Treasurer of the Philippines (Case G.R.
No. L-35941), and by Sedfrey A. Ordoez, et al. against the National
Treasurer and the Commission on Elections (Case G.R. No. L-35942); on
December 12, 1972, by Vidal Tan, et al., against the Commission on
Elections, the Treasurer of the Philippines, the Auditor General and the
Director of Printing (Case G.R. No. L-35948), and by Jose W. Diokno and
Benigno S. Aquino against the Commission on Elections (Case G.R. No. L35953); on December 14, 1972, by Jacinto Jimenez against the Commission
on Elections, the Auditor General, the Treasurer of the Philippines and the
Director of the Bureau of Printing (Case G.R. No. L-35961), and by Raul M.
Gonzales against the Commission on Elections, the Budget Commissioner,
the National Treasurer and the Auditor General (Case G. R. No. L-35965);
and on December 16, 1972, by Ernesto C. Hidalgo against the Commission
on Elections, the Secretary of Education, the National Treasurer and the
Auditor General (Case G.R. No. L-35979).
Raul M. Gonzales in his own behalf.

Ernesto Hidalgo in his own behalf.
Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor
General Conrado T. Limcaoco, Solicitor Vicente V. Mendoza and Solicitor
Reynato S. Puno for respondents.
CONCEPCION, C.J.:
On March 16, 1967, Congress of the Philippines passed Resolution No. 2,
which was amended by Resolution No. 4 of said body, adopted on June 17,
1969, calling a Convention to propose amendments to the Constitution of
the Philippines. Said Resolution No. 2, as amended, was implemented by
Republic Act No. 6132, approved on August 24, 1970, pursuant to the
provisions of which the election of delegates to said Convention was held
on November 10, 1970, and the 1971 Constitutional Convention began to
perform its functions on June 1, 1971. While the Convention was in session
on September 21, 1972, the President issued Proclamation No. 1081
placing the entire Philippines under Martial Law. On November 29, 1972,
the Convention approved its Proposed Constitution of the Republic of the
In all these cases, except the last (G.R. No. L-35979), the respondents were
required to file their answers "not later than 12: 00 (o'clock) noon of
Saturday, December 16, 1972." Said cases were, also, set for hearing and
partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was
continued on December 19, 1972. By agreement of the parties, the
aforementioned last case - G.R. No. L-35979 was, also, heard, jointly
10
with the others, on December 19, 1972. At the conclusion of the hearing,
on that date, the parties in all of the aforementioned cases were given a
short period of time within which "to submit their notes on the points they
desire to stress." Said notes were filed on different dates, between
December 21, 1972, and January 4, 1973.
"[2] Reforms instituted under Martial Law;

"[3] The holding of a plebiscite on the
proposed new Constitution and when (the
tentative new date given following the
postponement of the plebiscite from the
original date of January 15 are February 19
and March 5);
Meanwhile, or on December 17, 1972, the President had issued an order

temporarily suspending the effects of Proclamation No. 1081, for the
purpose of free and open debate on the Proposed Constitution. On
December 23, the President announced the postponement of the plebiscite
for the ratification or rejection of the Proposed Constitution. No formal
action to this effect was taken until January 7, 1973, when General Order
No. 20 was issued, directing "that the plebiscite scheduled to be held on
January 15, 1973, be postponed until further notice." Said General Order
No. 20, moreover, "suspended in the meantime" the "order of December
17, 1972, temporarily suspending the effects of Proclamation No. 1081 for
purposes of free and open debate on the proposed Constitution."
"[4] The opening of the regular session

slated on January 22 in accordance with the
existing Constitution despite Martial Law."
[Bulletin Today, January 3, 1973.]
8. That it was later reported that the following are to be the
forms of the questions to be asked to the Citizens
Assemblies:
In view of these events relative to the postponement of the

aforementioned plebiscite, the Court deemed it fit to refrain, for the time
being, from deciding the aforementioned cases, for neither the date nor
the conditions under which said plebiscite would be held were known or
announced officially. Then, again, Congress was, pursuant to the 1935
Constitution, scheduled to meet in regular session on January 22, 1973,
and since the main objection to Presidential Decree No. 73 was that the
President does not have the legislative authority to call a plebiscite and
appropriate funds therefor, which Congress unquestionably could do,
particularly in view of the formal postponement of the plebiscite by the
President reportedly after consultation with, among others, the leaders
of Congress and the Commission on Elections the Court deemed it more
imperative to defer its final action on these cases.
"[1] Do you approve of the New Society?

"[2] Do you approve of
measures under martial law?
the
reform
"[3] Do you think that Congress should

meet again in regular session?
"[4] How soon would you like the plebiscite
on the new Constitution to be held?"
[Bulletin Today, January 5, 1973;
9. That the voting by the so-called Citizens Assemblies was
announced to take place during the period from January 10
to January 15, 1973;
In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L35948 filed an "urgent motion," praying that said case be decided "as soon
as possible, preferably not later than January 15, 1973." It was alleged in
said motion, inter alia:
10 That on January 10, 1973, it was reported that one more

question would be added to the four (4) questions
previously announced, and that the forms of the questions
would be as follows:
6. That the President subsequently announced the issuance

of Presidential Decree No. 86 organizing the so-called
Citizens Assemblies, to be consulted on certain public
questions [Bulletin Today, January 1, 1973];
"[1] Do you like the New Society?

7. That thereafter it was later announced that "the
Assemblies will be asked if they favor or oppose
"[2] Do you like the reforms under martial

law?
"[1] The New Society;

"[3] Do you like Congress again to hold
sessions?
11
"[4] Do you like the plebiscite to be held

later?
In order to broaden the base of citizens'

participation in government.
"[5] Do you like the way President Marcos

is running the affairs of the government?"
[Bulletin
Today,
January
10,
1973;
additional question emphasis.]
QUESTION No. 2
But we do not want the Ad Interim
Assembly to be convoked. Or if it is to be
convened at all, it should not be done so
until after at least seven (7) years from the
approval of the New Constitution by the
Citizens Assemblies.
11. That on January 11, 1973, it was reported that six (6)
more questions would be submitted to the so-called
Citizens Assemblies:
"[1] Do you approve of the citizens
assemblies as the base of popular
government to decide issues of national
interests?
"[2] Do you
Constitution?
approve
of
the
QUESTION No. 3
The vote of the Citizens Assemblies should
already be considered the plebiscite on the
New Constitution.
new
If the Citizens Assemblies approve of the
New
Constitution,
then
the
new
Constitution should be deemed ratified.
"[3] Do you want a plebiscite to be called

to ratify the new Constitution?
QUESTION No. 4
"[4] Do you want the elections to be held in
November, 1973 in accordance with the
provisions of the 1935 Constitution ?
We are sick and tired of too frequent

elections. We are fed up with politics, of so
many debates and so much expenses.
"[5] If the elections would not be held,

when do you want the next elections to be
called?
QUESTION No. 5
"[6] Do you want martial law to continue?"

[Bulletin
Today,
January
11,
1973;
emphasis supplied.]
Probably a period of at least seven (7)

years moratorium on elections will be
enough for stability to be established in the
country, for reforms to take root and
normalcy to return.
12. That according to reports, the returns with respect to

the six (6) additional questions quoted above will be on a
form similar or identical to Annex "A" hereof;
QUESTION No. 6
We want President Marcos to continue with
Martial Law. We want him to exercise his
powers with more authority. We want him
to be strong and firm so that he can
accomplish all his reform programs and
establish normalcy in the country. If all
other measures fail, we want President
Marcos
to
declare
a
revolutionary
13. That attached to page 1 of Annex "A" is another page,

which we marked as Annex "A-1", and which reads:
"COMMENTS ON
QUESTION No. 1
12
government along the lines of the new

Constitution without the ad interim
Assembly."
just referred to will be reported then this Honorable Court

and the entire nation will be confronted with a fait
accompli which
has
been
attained
in
a
highly
unconstitutional and undemocratic manner;
Attention is respectfully invited to the comments on

"Question No. 3", which reads:
17. That the fait accompli would consist in the supposed

expression of the people approving the proposed
Constitution;
"QUESTION No. 3
18. That, if such event would happen, then the case before
this Honorable Court could, to all intents and purposes,
become moot because, petitioners fear, and they therefore
allege, that on the basis of such supposed expression of
the will of the people through the Citizens Assemblies, it
would be announced that the proposed Constitution, with
all its defects, both congenital and otherwise, has been
ratified;

be considered the plebiscite on the New
Constitution.
New
Constitution,
then
the
new
This, we are afraid, and therefore allege, is pregnant with
ominous possibilities.
19. That, in such a situation, the Philippines will be facing a

real crisis and there is likelihood of confusion if not chaos,
because then, the people and their officials will not know
which Constitution is in force.
14. That, in the meantime, speaking on television and over

the radio, on January 7, 1973, the President announced
that the limited freedom of debate on the proposed
Constitution was being withdrawn and that the
proclamation of martial law and the orders and decrees
issued thereunder would thenceforth strictly be enforced
[Daily Express, January 8, 1973];
20. That the crisis mentioned above can only be avoided if

this Honorable Court will immediately decide and announce
its decision on the present petition;
21. That with the withdrawal by the President of the limited
freedom of discussion on the proposed Constitution which
was given to the people pursuant to Sec. 3 of Presidential
Decree No. 73, the opposition of respondents to petitioners'
prayer that the proposed plebiscite be prohibited has now
collapsed and that a free plebiscite can no longer be held.
15. That petitioners have reason to fear, and therefore

state, that the question added in the last list of questions
to be asked to the Citizens Assemblies, namely:
Do you approve of the New Constitution?"
At about the same time, a similar prayer was made in a "manifestation"

filed by the petitioners in L-35949, "Gerardo Roxas, et al. v. Commission on
Elections,
et
al.,"
and
L-35942, "Sedfrey A. Ordonez, et al. v. The National Treasurer, et al."
in relation to the question following it:

"Do you still want a plebiscite to call to ratify the new
Constitution?"
The next day, January 13, 1973, which was a Saturday, the Court issued a
resolution requiring the respondents in said three (3) cases to comment on
said "urgent motion" and "manifestation," "not later than Tuesday noon,
January 16, 1973." Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 filed a "supplemental
motion for issuance of restraining order and inclusion of additional
respondents," praying
would be an attempt to by-pass and short-circuit this

Honorable Court before which the question of the validity
of the plebiscite on the proposed Constitution is now
pending;
allege, that if an affirmative answer to the two questions
13
... that a restraining order be issued enjoining and

restraining respondent Commission on Elections, as well as
the Department of LocaI Governments and its head,
Secretary Jose Rono; the Department of Agrarian Reforms
and its head, Secretary Conrado Estrella; the National
Ratification Coordinating Committee and its Chairman,
Guillermo de Vega; their deputies, subordinates and
substitutes, and all other officials and persons who may be
assigned such task, from collecting, certifying, and
announcing and reporting to the President or other officials
concerned, the so-called Citizens' Assemblies referendum
results allegedly obtained when they were supposed to
have met during the period comprised between January 10
and January 15, 1973, on the two questions quoted in
paragraph 1 of this Supplemental Urgent Motion.
and older, regardless of qualifications or

lack thereof, as prescribed in the Election
Code;
(b) Elections or plebiscites for the
ratification of constitutional amendments
contemplated in Article XV of the
Constitution have provisions for the
secrecy of choice and of vote, which is one
of the safeguards of freedom of action, but
votes in the Citizens' Assemblies were open
and were cast by raising hands;
(c) The Election Code makes ample
provisions for free, orderly and honest
elections, and such provisions are a
minimum requirement for elections or
plebiscites
for
the
ratification
of
constitutional amendments, but there were
no similar provisions to guide and regulate
proceedings of the so-called Citizens'
Assemblies;
In support of this prayer, it was alleged

3. That petitioners are now before this Honorable Court in
order to ask further that this Honorable Court issue a
restraining order enjoining herein respondents, particularly
respondent Commission on Elections as well as the
Department of Local Governments and its head, Secretary
Jose Rono; the Department of Agrarian Reforms and its
head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de
Vega; and their deputies, subordinates and/or substitutes,
from collecting, certifying, announcing and reporting to the
President the supposed Citizens' Assemblies referendum
have met during the period between January 10 and
January 15, 1973, particularly on the two questions quoted
in paragraph 1 of this Supplemental Urgent Motion;
(d) It is seriously to be doubted that, for

lack of material time, more than a handful
of the so-called Citizens' Assemblies have
been actually formed, because the
mechanics of their organization were still
being discussed a day or so before the day
they were supposed to begin functioning:
"Provincial governors and

city and municipal mayors
had been meeting with
barrio
captains
and
community leaders since
last Monday (January 8,
1973) to thresh out the
mechanics in the formation
of the Citizens' Assemblies
and
the
topics
for
discussion," (Bulletin Today,
January 16, 1973).
4. That the proceedings of the so-called Citizens'

Assemblies are illegal, null and void particularly insofar as
such proceedings are being made the basis of a supposed
consensus for the ratification of the proposed Constitution
because:
(a) The elections contemplated in the
Constitution, Article XV, at which the
proposed constitutional amendments are to
be submitted for ratification, are elections
at which only qualified and duly registered
voters are permitted to vote, whereas, the
so-called
Citizens'
Assemblies
were
participated in by persons 15 years of age
It should be recalled that the Citizens' Assemblies were

ordered formed only at the beginning of the year (Daily
Express, January 1, 1971), and considering the lack of
14
experience of the local organizers of said assemblies, as

well as the absence of sufficient guidelines for
organizations, it is too much to believe that such
assemblies could be organized at such a short notice.
"Therefore, viewing the case from all angles, the officials

and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion, can lawfully be reached by
the processes of this Honorable Court by reason of this
petition, considering, furthermore, that the Commission on
Elections has under our laws the power, among others, of:
5. That for lack of material time, the appropriate amended

petition to include the additional officials and government
agencies mentioned in paragraph 3 of this Supplemental
Urgent Motion could not be completed because, as noted in
the Urgent Motion of January 12, 1973, the submission of
the proposed Constitution to the Citizens' Assemblies was
not made known to the public until January 11, 1973. But
be that as it may, the said additional officials and agencies
may be properly included in the petition at bar because:
"a) Direct and immediate supervision and

control over national, provincial, city,
municipal and municipal district officials
required by law to perform duties relative
to the conduct of elections on matters
pertaining to the enforcement of the
provisions of this Code ... ." (Election Code
of 1971, Sec. 3).
(a) The herein petitioners have prayed in

their petition for the annulment not only of
Presidential Decree No. 73, but also of "any
similar decree, proclamation, order or
instruction"
6. That unless the petition at bar is decided immediately

and the Commission on Elections, together with the
officials and government agencies mentioned in paragraph
3 of this Supplemental Urgent Motion are restrained or
enjoined
from
collecting,
certifying,
reporting
or
announcing to the President the results of the alleged
voting of the so-called Citizens' Assemblies, irreparable
damage will be caused to the Republic of the Philippines,
the Filipino people, the cause of freedom and democracy,
and the petitioners herein because:
so that Presidential Decree No. 86, insofar at least as it

attempts to submit the proposed Constitution to a
plebiscite by the so-called Citizens' Assemblies, is properly
in issue in this case, and those who enforce, implement, or
carry out the said Presidential Decree No. 86, and the
instructions incidental thereto clearly fall within the scope
of this petition;
(a) After the result of the supposed voting on the questions

mentioned in paragraph 1 hereof shall have been
announced, a conflict will arise between those who
maintain that the 1935 Constitution is still in force, on the
one hand, and those who will maintain that it has been
superseded by the proposed Constitution, on the other,
thereby creating confusion, if not chaos;
(b) In their petition, petitioners sought the

issuance of a writ of preliminary injunction
restraining not only the respondents
named in the petition but also their
"agents" from implementing not only
Presidential Decree No. 73, but also "any
other similar decree, order, instruction, or
proclamation in relation to the holding of a
plebiscite on January 15, 1973 for the
purpose of submitting to the Filipino people
for their ratification or rejection the 1972
Draft or proposed Constitution approved by
the Constitutional Convention on November
30, 1972'; and finally,
(b) Even the jurisdiction of this Court will be subject to

serious attack because the advocates of the theory that
the proposed Constitution has been ratified by reason of
the announcement of the results of the proceedings of the
so-called Citizens' Assemblies will argue that, General
Order No. 3, which shall also be deemed ratified pursuant
to the Transitory Provisions of the proposed Constitution,
has placed Presidential Decrees Nos. 73 and 86 beyond the
reach and jurisdiction of this Honorable Court.
(c) Petitioners prayed for such other relief

which may be just and equitable. (p. 39,
Petition).
On the same date January 15, 1973 the Court passed a resolution
requiring the respondents in said case G.R. No. L-35948 to "file an answer
15
to the said motion not later than 4 P.M., Tuesday, January 16, 1973," and
setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While
the case was being heard, on the date last mentioned, at noontime, the
Secretary of Justice called on the writer of this opinion and said that, upon
instructions of the President, he (the Secretary of Justice) was delivering to
him (the writer) a copy of Proclamation No. 1102, which had just been
signed by the President. Thereupon, the writer returned to the Session Hall
and announced to the Court, the parties in G.R. No. L-35948 inasmuch
as the hearing in connection therewith was still going on and the public
there present that the President had, according to information conveyed by
the Secretary of Justice, signed said Proclamation No. 1102, earlier that
morning. Thereupon, the writer read Proclamation No. 1102 which is of the
following tenor:
WHEREAS, fourteen million nine hundred seventy-six

thousand five hundred sixty-one (14,976,561) members of
all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven
hundred forty-three thousand eight hundred sixty-nine
(743,869) who voted for its rejection; while on the question
as to whether or not the people would still like a plebiscite
to be called to ratify the new Constitution, fourteen million
two hundred ninety-eight thousand eight hundred fourteen
(14,298,814) answered that there was no need for a
plebiscite and that the vote of the Barangays (Citizens
Assemblies) should be considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that more
than ninety-five (95) per cent of the members of the
Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly
recommended that the new Constitution should already be
deemed ratified by the Filipino people;
BY THE PRESIDENT OF THE PHILIPPINES

PROCLAMATION NO. 1102
ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE
OF THE CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of

the Philippines, by virtue of the powers in me vested by the
Constitution, do hereby certify and proclaim that the
Constitution proposed by the nineteen hundred and
seventy-one (1971) Constitutional Convention has been
ratified by an overwhelming majority of all the votes cast
by the members of all the Barangays (Citizens Assemblies)
throughout the Philippines, and has thereby come into
effect.
WHEREAS, the Constitution proposed by the nineteen

hundred seventy-one Constitutional Convention is subject
to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios, in
municipalities and in districts/wards in chartered cities
pursuant to Presidential Decree No. 86, dated December
31, 1972, composed of all persons who are residents of the
barrio, district or ward for at least six months, fifteen years
of age or over, citizens of the Philippines and who are
registered in the list of Citizen Assembly members kept by
the barrio, district or ward secretary;
IN WITNESS WHEREOF, I have hereunto set my hand and

caused the seal of the Republic of the Philippines to be
affixed.
Done in the City of Manila, this 17th day of January, in the
year of Our Lord, nineteen hundred and seventy-three.
WHEREAS, the said Citizens Assemblies were established

precisely to broaden the base of citizen participation in the
democratic process and to afford ample opportunity for the
citizenry to express their views on important national
issues;
By the President:
WHEREAS, responding to the clamor of the people and

pursuant to Presidential Decree No. 86-A, dated January 5,
1973, the following questions were posed before the
Citizens Assemblies or Barangays: Do you approve of the
New Constitution? Do you still want a pIebiscite to be
called to ratify the new Constitution?
ALEJANDRO
Executive Secretary
MELCHOR
Such is the background of the cases submitted for Our determination. After
admitting some of the allegations made in the petition in L-35948 and
denying the other allegations thereof, respondents therein alleged in their
16
answer thereto, by way of affirmative defenses: 1) that the "questions

raised" in said petition "are political in character"; 2) that "the
Constitutional Convention acted freely and had plenary authority to
propose not only amendments but a Constitution which would supersede
the present Constitution"; 3) that "the President's call for a plebiscite and
the appropriation of funds for this purpose are valid"; 4) that "there is not
an improper submission" and "there can be a plebiscite under Martial Law";
and 5) that the "argument that the Proposed Constitution is vague and
incomplete, makes an unconstitutional delegation of power, includes a
referendum on the proclamation of Martial Law and purports to exercise
judicial power" is "not relevant and ... without merit." Identical defenses
were set up in the other cases under consideration.
insofar only as the determination of the proposals to be made and

formulated by said body is concerned but, also, because said proposals
cannot be valid as part of our Fundamental Law unless and until "approved
by the majority of the votes cast at an election at which" " said proposals
"are submitted to the people for their ratification," as provided in Section 1
of Art. XV of the 1935 Constitution.
As regards the authority of the President to issue Presidential Decree No.
73, "submitting to the Filipino 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 funds therefor," I
find it unnecessary, for the time being, to pass upon such question,
because the plebiscite ordained in said Decree has been postponed. In any
event, should the plebiscite be scheduled to be held at any time later, the
proper parties may then file such action as the circumstances may justify.
Immediately after the hearing held on January 17, 1973, or since the
afternoon of that date, the Members of the Court have been deliberating
on the aforementioned cases and, after extensive discussions on the
merits thereof, have deemed it best that each Member write his own views
thereon and that thereafter the Chief Justice should state the result or the
votes thus cast on the points in issue. Hence, the individual views of my
brethren in the Court are set forth in the opinions attached hereto, except
that, instead of writing their separate opinions, some Member have
preferred to merely concur in the opinion of one of our colleagues.
With respect to the question whether or not martial law per se affects the
validity of a submission to the people for ratification of specific proposals
for amendment of the Constitution, I consider this matter as one intimately
and necessarily related to the validity of Proclamation No. 1102 of the
President of the Philippines. This question has not been explicitly raised,
however, in any of the cases under consideration, said cases having been
filed before the issuance of such Proclamation, although the petitioners in
L-35948 maintain that the issue on the referral of the Proposed
Constitution to the Citizens' Assemblies may be deemed and was raised in
their Supplemental Motion of January 15, 1973. At any rate, said question
has not been adequately argued by the parties in any of these cases, and it
would not be proper to resolve such a transcendental question without the
most thorough discussion possible under the circumstances. In fairness to
the petitioners in L-35948 and considering the surrounding circumstances,
I believe, therefore, that, instead of dismissing the case as moot and
academic, said petitioners should be given a reasonable period of time
within which to move in the premises.
What follows is my own view on these cases.

The first question for Our determination is whether We have authority to
pass upon the validity of Presidential Decree No. 73, in view of the Solicitor
General's allegation to the effect that said question is a political one. I am
of the opinion on which the Members of the Court are unanimous that
the contention of the Solicitor General is untenable and that the issue
aforementioned is a justiciable one. Indeed, the contested decree purports
to have the force and effect of a legislation, so that the issue on the
validity thereof is manifestly a justiciable one, on the authority, not only of
a long list of cases in which the Court has passed upon the constitutionality
of statutes and/or acts of the Executive, 1 but, also, of no less than that of
Subdivision (1) of Section 2, Article VIII of the 1935 Constitution, 2which
expressly provides for the authority of this Court to review cases involving
said issue.
Recapitulating the views expressed by the Members of the Court, the result
is this:
1. There is unanimity on the justiciable nature of the issue on the legality of
Presidential Decree No. 73.
Petitioners in G.R. No. L-35948 maintain that the 1971 Constitutional

Convention had exceeded its authority in approving Sections 2, 3 (par. 2)
and 12 of Article XVII of the proposed Constitution. Regardless of the
wisdom and moral aspects of the contested provisions of the proposed
Constitution, it is my considered view that the Convention was legally free
to postulate any amendment it may deem fit to propose save perhaps
what is or may be inconsistent with what is now known, particularly in
international law, as Jus Cogens not only because the Convention
exercised sovereign powers delegated thereto by the people although
2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando,

Teehankee, Esguerra and myself, or six (6) Members of the Court, are of
the opinion that the issue has become moot and academic, whereas
Justices Barredo, Makasiar and Antonio voted to uphold the validity of said
Decree.
3. On the authority of the 1971 Constitutional Convention to pass the
proposed Constitution or to incorporate therein the provisions contested by
17
the
petitioners
in
L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that
the issue has become moot and academic. Justices Fernando, Barredo,
Makasiar, Antonio and myself have voted to uphold the authority of the
Convention.
d. Justice Antonio feels "that the Court is not competent to

act" on the issue whether the Proposed Constitution has
been ratified by the people or not, "in the absence of any
judicially discoverable and manageable standards," since
the issue "poses a question of fact.
4. Justice Fernando, likewise, expressed the view that the 1971

Constitutional Convention had authority to continue in the performance of
its functions despite the proclamation of Martial Law. In effect, Justices
Barredo, Makasiar and Antonio hold the same view.
7. On the question whether or not these cases should dismissed, Justices

Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted in the
affirmative, for the reasons set forth in their respective opinions. Justices
Fernando, Teehankee and the writer similarly voted, except as regards
Case No. L-35948 as to which they voted to grant to the petitioners therein
a reasonable period of time within which to file appropriate pleadings
should they wish to contest the legality of Presidential Proclamation No.
1102. Justice Zaldivar favors the granting of said period to the petitioners
in
said
Case
No.
L-35948 for the aforementioned purpose, but he believes, in effect, that
the Court should go farther and decide on the merits everyone of the cases
under Consideration.
5. On the question whether the proclamation of Martial Law affected the

proper submission of the proposed Constitution to a plebiscite, insofar as
the freedom essential therefor is concerned, Justice Fernando is of the
opinion that there is a repugnancy between the election contemplated
under Art. XV of the 1935 Constitution and the existence of Martial Law,
and would, therefore, grant the petitions were they not moot and
academic. Justices Barredo, Antonio and Esguerra are of the opinion that
that issue involves question of fact which cannot be predetermined, and
that Martial Law per se does not necessarily preclude the factual possibility
of adequate freedom for the purposes contemplated.
WHEREFORE, all of the aforementioned cases are hereby dismissed,

without special pronouncement as to costs.
6. On Presidential Proclamation No. 1102, the following views were

expressed:
It is so ordered.
Makasiar, J., concur.
a. Justices Makalintal, Castro, Fernando, Teehankee,

Makasiar, Esguerra and myself are of the opinion that
question of validity of said Proclamation has not been
properly raised before the Court, which, accordingly, should
not pass upon such question.

SUPREME COURT
Manila
EN BANC
b. Justice Barredo holds that the issue on the

constitutionality of Proclamation No. 1102 has been
submitted to and should be determined by the Court, and
that the "purported ratification of the Proposed Constitution
... based on the referendum among Citizens' Assemblies
falls short of being in strict conformity with the
requirements of Article XV of the 1935 Constitution," but
that
such
unfortunate
drawback
notwithstanding,
"considering all other related relevant circumstances, ...
the new Constitution is legally recognizable and should be
recognized as legitimately in force.
G.R. No. L-36142 March 31, 1973

JOSUE JAVELLANA, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL
DEFENSE, THE SECRETARY OF JUSTICE AND THE SECRETARY OF
FINANCE, respondents.
c. Justice Zaldivar maintains unqualifiedly that the

Proposed Constitution has not been ratified in accordance
with Article XV of the 1935 Constitution, and that,
accordingly, it has no force and effect whatsoever.
G.R. No. L-36164 March 31, 1973

VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL
CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA AND LORENZO
18
M. TAADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE
SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORM, THE
SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE
BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL
COMMISSION ON REORGANIZATION, THE TREASURER OF THE
PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE
COMMISSIONER OF CIVIL SERVICE, respondents.
Taada, Salonga, Ordoez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo

for petitioners Gerardo Roxas, et al.
G.R. No. L-36165 March 31, 1973.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V.

Mendoza and Solicitor Reynato S. Puno for other respondents.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.

Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA,

SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA ESTRADAKALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN
PONCE ENRILE, in his capacity as Secretary of National Defense;
General ROMEO ESPINO, in his capacity as Chief of Staff of the
Armed Forces of the Philippines; TANCIO E. CASTAEDA, in his
capacity as Secretary General Services; Senator GIL J. PUYAT, in his
capacity as President of the Senate; and Senator JOSE ROY, his
capacity, as President Pro Tempore of the of the
Senate, respondents.
RESOLUTION
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965
and
L-35979, decided on January 22, 1973, to which We will hereafter refer
collectively as the plebiscite cases.
Background of the Plebiscite Cases.
G.R. No. L-36236 March 31, 1973

The factual setting thereof is set forth in the decision therein rendered,
from which We quote:
EDDIE B. MONTECLARO, [personally and in his capacity as

President of the National Press Club of the Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC
INFORMATION, THE AUDITOR GENERAL, THE BUDGET
COMMISSIONER & THE NATIONAL TREASURER, respondents.
On March 16, 1967, Congress of the Philippines passed

Resolution No. 2, which was amended by Resolution No. 4
of said body, adopted on June 17, 1969, calling a
Convention to propose amendments to the Constitution of
the Philippines. Said Resolution No. 2, as amended, was
implemented by Republic Act No. 6132, approved on
August 24, 1970, pursuant to the provisions of which the
election of delegates to said Convention was held on
November 10, 1970, and the 1971 Constitutional
Convention began to perform its functions on June 1, 1971.
While the Convention was in session on September 21,
1972, the President issued Proclamation No. 1081 placing
the entire Philippines under Martial Law. On November 29,
1972, the Convention approved its Proposed Constitution of
the Republic of the Philippines. The next day, November
30, 1972, the President of the Philippines issued
Presidential Decree No. 73, "submitting to the Filipino
people for ratification or rejection the Constitution of the
Republic of the Philippines proposed by the 1971
G.R. No. L-36283 March 31, 1973

NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO
ASODISEN,
JR.,
and
RAUL
M.
GONZALEZ,petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE
SECRETARY OF NATIONAL DEFENSE, THE HONORABLE BUDGET
COMMISSIONER, THE HONORABLE AUDITOR GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Taada and Associates for petitioners Vidal Tan, et al.
19
Constitutional Convention, and appropriating funds

therefor," as well as setting the plebiscite for said
ratification or rejection of the Proposed Constitution on
January 15, 1973.
In all these cases, except the last (G.R. No. L-35979), the
respondents were required to file their answers "not later
than 12:00 (o'clock) noon of Saturday, December 16,
1972." Said cases were, also, set for hearing and partly
heard on Monday, December 18, 1972, at 9:30 a.m. The
hearing was continued on December 19, 1972. By
agreement of the parties, the aforementioned last case
G.R. No. L-35979 was, also, heard, jointly with the
others, on December 19, 1972. At the conclusion of the
hearing, on that date, the parties in all of the
aforementioned cases were given a short period of time
within which "to submit their notes on the points they
desire to stress." Said notes were filed on different dates,
between December 21, 1972, and January 4, 1973.
Soon after, or on December 7, 1972, Charito Planas filed,

with this Court, Case G.R. No. L-35925, against the
Commission on Elections, the Treasurer of the Philippines
and the Auditor General, to enjoin said "respondents or
their agents from implementing Presidential Decree No. 73,
in any manner, until further orders of the Court," upon the
grounds, inter alia, that said Presidential Decree "has no
force and effect as law because the calling ... of such
plebiscite, the setting of guidelines for the conduct of the
same, the prescription of the ballots to be used and the
question to be answered by the voters, and the
appropriation of public funds for the purpose, are, by the
Constitution, lodged exclusively in Congress ...," and "there
is no proper submission to the people of said Proposed
Constitution set for January 15, 1973, there being no
freedom of speech, press and assembly, and there being
no sufficient time to inform the people of the contents
thereof."
Meanwhile, or on December 17, 1972, the President had

issued an order temporarily suspending the effects of
Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution. On December 23, the
President announced the postponement of the plebiscite
for the ratification or rejection of the Proposed Constitution.
No formal action to this effect was taken until January 7,
1973, when General Order No. 20 was issued, directing
"that the plebiscite scheduled to be held on January 15,
1978, be postponed until further notice." Said General
Order No. 20, moreover, "suspended in the meantime" the
"order of December 17, 1972, temporarily suspending the
effects of Proclamation No. 1081 for purposes of free and
open debate on the proposed Constitution."
Substantially identical actions were filed, on December 8,

1972, by Pablo C. Sanidad against the Commission on
Elections (Case G.R. No. L- 35929) on December 11, 1972,
by Gerardo Roxas, et al., against the Commission on
Elections, the Director of Printing, the National Treasurer
and the Auditor General (Case G.R. L-35940), by Eddie B.
Monteclaro against the Commission on Elections and the
Treasurer of the Philippines (Case G.R. No. L-35941), and by
Sedfrey Ordoez, et al. against the National Treasurer and
the Commission on Elections (Case G.R. No. L-35942); on
December 12, 1972, by Vidal Tan, et al., against the
Commission on Elections, the Treasurer of the Philippines,
the Auditor General and the Director of Printing (Case G.R.
No. L-35948) and by Jose W. Diokno and Benigno S. Aquino
against the Commission on Elections (Case G.R. No. L35953); on December 14, 1972, by Jacinto Jimenez against
the Commission on Elections, the Auditor General, the
Treasurer of the Philippines and the Director of the Bureau
of Printing (Case G.R. No. L-35961), and by Raul M.
Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor
General (Case G.R. No. L-35965); and on December 16,
1972, by Ernesto C. Hidalgo against the Commission on
Elections, the Secretary of Education, the National
Treasurer and the Auditor General (Case G.R. No. L-35979).

aforementioned plebiscite, the Court deemed it fit to
refrain, for the time being, from deciding the
aforementioned cases, for neither the date nor the
conditions under which said plebiscite would be held were
known or announced officially. Then, again, Congress was,
pursuant to the 1935 Constitution, scheduled to meet in
regular session on January 22, 1973, and since the main
objection to Presidential Decree No. 73 was that the
President does not have the legislative authority to call a
plebiscite and appropriate funds therefor, which Congress
unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President
reportedly after consultation with, among others, the
leaders of Congress and the Commission on Elections
the Court deemed it more imperative to defer its final
action on these cases.
20
"In the afternoon of January 12, 1973, the petitioners in

Case
G.R.
No.
L-35948 filed an "urgent motion," praying that said case be
decided "as soon as possible, preferably not later than
January 15, 1973." It was alleged in said motion, inter alia:
"9. That the voting by the so-called Citizens Assemblies

was announced to take place during the period from
January 10 to January 15, 1973;
"10. That on January 10, 1973, it was reported that on
more question would be added to the four (4) question
previously announced, and that the forms of the question
"6. That the President subsequently announced the

issuance of Presidential Decree No. 86 organizing the socalled Citizens Assemblies, to be consulted on certain
public questions [Bulletin Today, January 1, 1973];
[1] Do you like the New Society?
"7. That thereafter it was later announced that "the

[2] Do you like the reforms under martial

law?
[1] The New Society;
[3] Do you like Congress again to hold

sessions?
[2] Reforms instituted under Martial Law;

[4] Do you like the plebiscite to be held
later?
[3] The holding of a plebiscite on the

tentative new dates given following the
and March 5);
[5] Do you like the way President Marcos

running
the
affairs
of
the
government? [Bulletin Today, January 10,
1973; emphasis an additional question.]
[4] The opening of the regular session

"11. That on January 11, 1973, it was reported that six (6)
"8. That it was later reported that the following are to be

the forms of the questions to be asked to the Citizens
Assemblies:
[1] Do you approve of the citizens

interests?
[1] Do you approve of the New Society?
[2] Do you
Constitution?
[2] Do you approve of the reform measures

under martial law?
approve
of
the
new
[3] Do you want a plebiscite to be called to

ratify the new Constitution?
[3] Do you think that Congress should meet

again in regular session?
[4] Do you want the elections to be held in

provisions of the 1935 Constitution?
[4] How soon would you like the plebiscite

on the new Constitution to be held?
[Bulletin Today, January 5, 1973].
21
[5] If the elections would not be held, when

do you want the next elections to be
called?

[6] Do you want martial law to continue?

[Bulletin
Today,
January
11,
1973;
emphasis supplied]
QUESTION No. 5
normalcy to return.
"12. That according to reports, the returns with respect to

"13. That attached to page 1 of Annex "A" is another page,
QUESTION No. 6
Marcos
to
declare
a
revolutionary
Assembly."
COMMENTS ON
QUESTION No. 1
In order to broaden the
base
of
citizens'
participation
in
government.
QUESTION No. 2
"Attention is respectfully invited to the comments on

"Question No. 3," which reads:

QUESTION No. 3
Constitution.
QUESTION No. 3

New
Constitution,
then
the
new

New Constitution.


New
Constitution,
then
the
new

QUESTION No. 4
22

"20. That the crisis mentioned above can only be avoided if

"21. That with the withdrawal by the President of the

limited freedom of discussion on the proposed Constitution
which was given to the people pursuant to Sec. 3 of
Presidential Decree No. 73, the opposition of respondents
to petitioners' prayer at the plebiscite be prohibited has
now collapsed and that a free plebiscite can no longer be
held."

Do you still
want a
plebiscite
to be called
to ratify the
new
Constitutio
n?"
At about the same time, a similar prayer was made in a

"manifestation" filed by the petitioners in L-35949,
"Gerardo Roxas, et al. v. Commission on Elections, et al.,"
and L-35942, "Sedfrey A. Ordoez, et al. v. The National
Treasurer, et al."

pending;
The next day, January 13, 1973, which was a Saturday, the
Court issued a resolution requiring the respondents in said
three (3) cases to comment on said "urgent motion" and
"manifestation," "not later than Tuesday noon, January 16,
1973." Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 riled a
"supplemental motion for issuance of restraining order and
inclusion of additional respondents," praying
"16. That petitioners have reason to fear, and therefore

accompli which
has
been
attained
in
a
highly
"... that a restraining order be issued

enjoining and restraining respondent
Commission on Elections, as well as the
Department of Local Governments and its
head, Secretary Jose Roo; the Department
of Agrarian Reforms and its head, Secretary
Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman,
Guillermo
de
Vega;
their
deputies,
subordinates and substitutes, and all other
officials and persons who may be assigned
such task, from collecting, certifying, and
announcing and reporting to the President
or other officials concerned, the so-called
Citizens' Assemblies referendum results
allegedly obtained when they were
supposed to have met during the period
comprised between January 10 and January
"17. That the fait accompli would consist in the supposed

Constitution;
"18. That, if such event would happen, then the case
before this Honorable Court could, to all intents and
purposes, become moot because, petitioners fear, and they
therefore allege, that on the basis of such supposed
expression of the will of the people through the Citizens
Assemblies, it would be announced that the proposed
Constitution, with all its defects, both congenital and
otherwise, has been ratified;
"19. That, in such a situation the Philippines will be facing a
23
15, 1973, on the two questions quoted in

paragraph 1 of this Supplemental Urgent
Motion."
[c] The Election Code makes ample

plebiscites
for
the
ratification
of
proceedings of the so called Citizens'
Assemblies;

"3. That petitioners are now before this Honorable Court in
Jose Roo; the Department of Agrarian Reforms and its
[d] It is seriously to be doubted that, for

of the so called Citizens' Assemblies have

barrio
captains
and
last Monday [January 8,
of the Citizens Assemblies
and
the
topics
for
discussion." [Bulletin Today,
January 10, 1973]
"4. That the proceedings of the so-called Citizens'

because:
[a] The elections contemplated in the
so called Citizens' Assemblies were
Code;
"It should be recalled that the Citizens' Assemblies were

ordered formed only at the beginning of the year [Daily
Express, January 1, 1973], and considering the lack of
organization, it is too much to believe that such assemblies
could be organized at such a short notice.
"5. That for lack of material time, the appropriate amended
[b] Elections or plebiscites for the

24


provisions of this Code ..." [Election Code of
1971, Sec. 3].
[a] The herein petitioners have prayed in

instruction.
"6. That unless the petition at bar is decided immediately

enjoined
from
collecting,
certifying,
reporting
or
the Filipino people, the cause of freedom an democracy,

carry out the said Presidential Decree No. 86. and the
of this petition;
[a] After the result of the supposed voting

on the questions mentioned in paragraph 1
hereof shall have been announced, a
conflict will arise between those who
maintain that the 1935 Constitution is still
in force, on the one hand, and those who
will maintain that it has been superseded
by the proposed Constitution, on the other,
[b] In their petition, petitioners sought the

30, 1972"; and finally,
[b] Even the jurisdiction of this Court will be

subject to serious attack because the
advocates of the theory that the proposed
Constitution has been ratified by reason of
the announcement of the results of the
Assemblies will argue that, General Order
No. 3, which shall also be deemed ratified
pursuant to the Transitory Provisions of the
proposed
Constitution,
has
placed
Presidential Decree Nos. 73 and 86 beyond
the reach and jurisdiction of this Honorable
Court."
[c] Petitioners prayed for such other relief

which may be just and equitable. [p. 39,
Petition].
On the same date January 15, 1973 the Court passed

a resolution requiring the respondents in said case G.R. No.
L-35948 to file "file an answer to the said motion not later
than 4 P.M., Tuesday, January 16, 1973," and setting the
motion for hearing "on January 17, 1973, at 9:30 a.m."
While the case was being heard, on the date last
mentioned, at noontime, the Secretary of Justice called on
the writer of this opinion and said that, upon instructions of
(a) Direct and immediate supervision and

25
the President, he (the Secretary of Justice) was delivering

to him (the writer) a copy of Proclamation No. 1102, which
had just been signed by the President. Thereupon, the
writer returned to the Session Hall and announced to the
Court, the parties in G.R. No. L-35948 inasmuch as the
hearing in connection therewith was still going on and
the public there present that the President had, according
to information conveyed by the Secretary of Justice, signed
said Proclamation No. 1102, earlier that morning.
Thereupon, the writer read Proclamation No. 1102 which is
of the following tenor:
"WHEREAS, fourteen million nine hundred seventy-six

"BY THE PRESIDENT OF THE PHILIPPINES

"WHEREAS, since the referendum results show that more
"PROCLAMATION NO. 1102

"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of

ratified by an overwhelming majority of all of the votes cast
effect.
"WHEREAS, the Constitution proposed by the nineteen

"WHEREAS, Citizens Assemblies were created in barrios, in
"IN WITNESS WHEREOF, I have hereunto set my hand and

affixed.
"WHEREAS, the said Citizens Assemblies were established

issues;
"Done in the City of Manila, this 17th day of January, in the

(Sgd.)
E.
"Presiden
Philippin
"WHEREAS, responding to the clamor of the people and

New Constitution? Do you still want a plebiscite to be called
"By the President:

"ALEJANDRO
"Executive Secretary"
26
MELCHOR
Such is the background of the cases submitted

determination. After admitting some of the allegations
made in the petition in L-35948 and denying the other
allegations thereof, respondents therein alleged in their
answer thereto, by way affirmative defenses: 1) that the
"questions raised" in said petition "are political in
character"; 2) that "the Constitutional Convention acted
freely and had plenary authority to propose not only
amendments but a Constitution which would supersede the
present Constitution"; 3) that "the President's call for a
plebiscite and the appropriation of funds for this purpose
are valid"; 4) that "there is not an improper submission"
and "there can be a plebiscite under Martial Law"; and 5)
that the "argument that the Proposed Constitution is vague
and incomplete, makes an unconstitutional delegation of
power, includes a referendum on the proclamation of
Martial Law and purports to exercise judicial power" is "not
relevant and ... without merit." Identical defenses were set
up in the other cases under consideration.
3. On the authority of the 1971 Constitutional Convention

to pass the proposed Constitution or to incorporate therein
the provisions contested by the petitioners in L-35948,
Justices Makalintal, Castro, Teehankee and Esguerra opine
that the issue has become moot and academic. Justices
Fernando, Barredo, Makasiar, Antonio and myself have
voted to uphold the authority of the Convention.
4. Justice Fernando, likewise, expressed the view that the
1971 Constitutional Convention had authority to continue
in the performance of its functions despite the
proclamation of Martial Law. In effect, Justices Barredo,
Makasiar and Antonio hold the same view.
5. On the question whether the proclamation of Martial Law
affected the proper submission of the proposed
Constitution to a plebiscite, insofar as the freedom
essential therefor is concerned, Justice Fernando is of the
opinion that there is a repugnancy between the election
contemplated under Art. XV of the 1935 Constitution and
the existence of Martial Law, and would, therefore, grant
the petitions were they not moot and academic. Justices
Barredo, Antonio and Esguerra are of the opinion that issue
involves questions of fact which cannot be predetermined,
and that Martial Law per se does not necessarily preclude
the factual possibility of adequate freedom, for the
purposes contemplated.
Immediately after the hearing held on January 17, 1973, or

since the afternoon of that date, the Members of the Court
have been deliberating on the aforementioned cases and,
after extensive discussions on the merits thereof, have
deemed it best that each Member write his own views
thereon and that thereafter the Chief Justice should state
the result or the votes thus cast on the points in issue.
Hence, the individual views of my brethren in the Court are
set forth in the opinions attached hereto, except that,
instead of writing their separate opinions, some Members
have preferred to merely concur in the opinion of one of
our colleagues.
6. On Presidential Proclamation No. 1102, the following

views were expressed:
a. Justices Makalintal, Castro, Fernando,
Teehankee, Makasiar, Esguerra and myself
are of the opinion that the question of
validity of said Proclamation has not been
properly raised before the Court, which,
accordingly, should not pass upon such
question.
Then the writer of said decision expressed his own opinion on the issues
involved therein, after which he recapitulated the views of the Members of
the Court, as follows:
1. There is unanimity on the justiciable nature of the issue
on the legality of Presidential Decree No. 73.
b. Justice Barredo holds that the issue on

the constitutionality of Proclamation No.
1102 has been submitted to and should be
determined by the Court, and that the
"purported ratification of the Proposed
Constitution ... based on the referendum
among Citizens' Assemblies falls short of
being in strict conformity with the
requirements of Article XV of the 1935
2. On the validity of the decree itself, Justices Makalintal,

Castro, Fernando, Teehankee, Esguerra and myself, or six
(6) Members of the Court, are of the opinion that the issue
has become moot and academic, whereas Justices Barredo,
Makasiar and Antonio voted to uphold the validity of said
Decree.
27
Constitution," but that such unfortunate

drawback notwithstanding, "considering all
other related relevant circumstances, ...
the new Constitution is legally recognizable
and should be recognized as legitimately in
force."
propose Constitution not found in the present Constitution" referring to

that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino
citizen, and a qualified and registered voter" and as "a class suit, for
himself, and in behalf of all citizens and voters similarly situated," was
amended on or about January 24, 1973. After reciting in substance the
facts set forth in the decision in the plebiscite cases, Javellana alleged that
the President had announced "the immediate implementation of the New
Constitution, thru his Cabinet, respondents including," and that the latter
"are acting without, or in excess of jurisdiction in implementing the said
proposed Constitution" upon the ground: "that the President, as
Commander-in-Chief of the Armed Forces of the Philippines, is without
authority to create the Citizens Assemblies"; that the same "are without
power to approve the proposed Constitution ..."; "that the President is
without power to proclaim the ratification by the Filipino people of the
proposed Constitution"; and "that the election held to ratify the proposed
Constitution was not a free election, hence null and void."
c. Justice Zaldivar maintains unqualifiedly

that the Proposed Constitution has not
been ratified in accordance with Article XV
of the 1935 Constitution, and that,
accordingly, it has no force and effect
whatsoever.
d. Justice Antonio feels "that the Court is
not competent to act" on the issue whether
the Proposed Constitution has been ratified
by the people or not, "in the absence of
any judicially discoverable and manageable
standards," since the issue "poses a
question of fact.
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio
Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de
Peralta and Lorenzo M. Taada, against the Executive Secretary, the
Secretaries of Finance, Justice, Land Reform, and National Defense, the
Auditor General, the Budget Commissioner, the Chairman of the
Presidential Commission on Reorganization, the Treasurer of the
Philippines, the Commission on Elections and the Commissioner of Civil
Service 4 on February 3, 1973, by Eddie Monteclaro, personally and as
President of the National Press Club of the Philippines, against the
Executive Secretary, the Secretary of Public Information, the Auditor
General, the Budget Commissioner and the National Treasurer 5 and on
February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo
Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive Secretary, the
Secretary of National Defense, the Budget Commissioner and the Auditor
General.
7. On the question whether or not these cases should be

dismissed, Justices Makalintal, Castro, Barredo, Makasiar,
Antonio and Esguerra voted in the affirmative, for the
reasons set forth in their respective opinions. Justices
Fernando, Teehankee, and the writer similarly voted,
except as regards Case No. L-35948 as to which they voted
to grant to the petitioners therein a reasonable period of
time within which to file appropriate pleadings should they
wish to contest the legality of Presidential Proclamation No.
1102. Justice Zaldivar favors the granting of said period to
the petitioners in said Case No. L-35948 for the
aforementioned purpose, but he believes, in effect, that the
Court should go farther and decide on the merits everyone
of the cases under consideration.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R.

Salonga, Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw,
the first as "duly elected Senator and Minority Floor Leader of the Senate,"
and others as "duly elected members" thereof, filed Case G.R. No. L-36165,
against the Executive Secretary, the Secretary National Defense, the Chief
of Staff of the Armed Forces of the Philippines, the Secretary of General
Services, the President and the President Pro Tempore of the Senate. In
their petition as amended on January 26, 1973 petitioners Gerardo
Roxas, et al. allege, inter alia, that the term of office of three of the
aforementioned petitioners 8 would expire on December 31, 1975, and that
of the others 9 on December 31, 1977; that pursuant to our 1935
Constitution, "which is still in force Congress of the Philippines "must
convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M.,
which is regular customary hour of its opening session"; that "on said day,
from 10:00 A.M. up to the afternoon," said petitioner "along with their other
colleagues, were unlawfully prevented from using the Senate Session Hall,
Accordingly, the Court acting in conformity with the position taken by six
(6) of its members, 1 with three (3) members dissenting, 2 with respect to
G.R. No. L-35948, only and another member 3 dissenting, as regards all of
the cases dismissed the same, without special pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L36142 against the Executive Secretary and the Secretaries of National
Defense, Justice and Finance, to restrain said respondents "and their
subordinates or agents from implementing any of the provisions of the
28
the same having been closed by the authorities in physical possession and
control the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the said
day, the premises of the entire Legislative Building were ordered cleared by
the same authorities, and no one was allowed to enter and have access to
said premises"; that "(r)espondent Senate President Gil J. Puyat and, in his
absence, respondent President Pro Tempore Jose Roy we asked by
petitioning Senators to perform their duties under the law and the Rules of
the Senate, but unlawfully refrained and continue to refrain from doing so";
that the petitioners ready and willing to perform their duties as duly
elected members of the Senate of the Philippines," but respondent
Secretary of National Defense, Executive Secretary and Chief of Staff,
"through their agents and representatives, are preventing petitioners from
performing their duties as duly elected Senators of the Philippines"; that
"the Senate premise in the Congress of the Philippines Building ... are
occupied by and are under the physical control of the elements military
organizations under the direction of said respondents"; that, as per "official
reports, the Department of General Services ... is now the civilian agency in
custody of the premises of the Legislative Building"; that respondents
"have unlawfully excluded and prevented, and continue to so exclude and
prevent" the petitioners "from the performance of their sworn duties,
invoking the alleged approval of the 1972 (1973) Constitution of the
Philippines by action of the so-called Citizens' Assemblies on January 10,
1973 to January 15, 1973, as stated in and by virtue of Proclamation No.
1102 signed and issued by the President of the Philippines"; that "the
alleged creation of the Citizens' Assemblies as instrumentalities for the
ratification of the Constitution of the Republic of the Philippines" is
inherently illegal and palpably unconstitutional; that respondents Senate
President and Senate President Pro Tempore "have unlawfully refrained and
continue to refrain from and/or unlawfully neglected and continue to
neglect the performance of their duties and functions as such officers
under the law and the Rules of the Senate" quoted in the petition; that
because of events supervening the institution of the plebiscite cases, to
which reference has been made in the preceding pages, the Supreme
Court dismissed said cases on January 22, 1973, by a majority vote, upon
the ground that the petitions therein had become moot and academic; that
the alleged ratification of the 1972 (1973) Constitution "is illegal,
unconstitutional and void and ... can not have superseded and revoked the
1935 Constitution," for the reasons specified in the petition as amended;
that, by acting as they did, the respondents and their "agents,
representatives and subordinates ...have excluded the petitioners from an
office to which" they "are lawfully entitled"; that "respondents Gil J. Puyat
and Jose Roy have unlawfully refrained from convening the Senate for its
8th session, assuming general jurisdiction over the Session Hall and the
premises of the Senate and ... continue such inaction up to this time and ...
a writ of mandamus is warranted in order to compel them to comply with
the duties and functions specifically enjoined by law"; and that "against the
above mentioned unlawful acts of the respondents, the petitioners have no
appeal nor other speedy and adequate remedy in the ordinary course of
law except by invoking the equitable remedies of mandamus and
prohibition with
injunction."
the
provisional
remedy
of
preliminary
mandatory
Premised upon the foregoing allegations, said petitioners prayed that,

"pending hearing on the merits, a writ of preliminary mandatory injunction
be issued ordering respondents Executive Secretary, the Secretary of
National Defense, the Chief of Staff of the Armed Forces of the Philippines,
and the ... Secretary of General Service, as well as all their agents,
representatives and subordinates to vacate the premises of the Senate of
the Philippines and to deliver physical possession of the same to the
President of the Senate or his authorized representative"; and that hearing,
judgment be rendered declaring null and Proclamation No. 1102 ... and any
order, decree, proclamation having the same import and objective, issuing
writs of prohibition and mandamus, as prayed for against above-mentioned
respondents, and making the writ injunction permanent; and that a writ
of mandamus be issued against the respondents Gil J. Puyat and Jose Roy
directing them to comply with their duties and functions as President and
President Pro Tempore, respectively, of the Senate of Philippines, as
provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or amended
petitions, respondents filed, with the leave Court first had and obtained, a
consolidated comment on said petitions and/or amended petitions, alleging
that the same ought to have been dismissed outright; controverting
petitioners' allegations concerning the alleged lack impairment of the
freedom of the 1971 Constitution Convention to approve the proposed
Constitution, its alleged lack of authority to incorporate certain contested
provisions thereof, the alleged lack of authority of the President to create
and establish Citizens' Assemblies "for the purpose submitting to them the
matter of ratification of the new Constitution," the alleged "improper or
inadequate submiss of the proposed constitution," the "procedure for
ratification adopted ... through the Citizens Assemblies"; a maintaining
that: 1) "(t)he Court is without jurisdiction to act on these petitions"; 2) the
questions raised therein are "political in character and therefore
nonjusticiable"; 3) "there substantial compliance with Article XV of the 1
Constitution"; 4) "(t)he Constitution was properly submitted the people in a
free, orderly and honest election; 5) "Proclamation No. 1102, certifying the
results of the election, is conclusive upon the courts"; and 6) "(t)he
amending process outlined in Article XV of the 1935 Constitution is not
exclusive of other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their
separate comment therein, alleging that "(t)he subject matter" of said case
"is a highly political question which, under the circumstances, this ...Court
would not be in a position to act upon judicially," and that, in view of the
opinions expressed by three members of this Court in its decision in the
plebiscite cases, in effect upholding the validity of Proclamation No. 1102,
"further proceedings in this case may only be an academic exercise in
futility."
29
On February 5, 1973, the Court issued a resolution requiring respondents in

L-36236 to comment on the petition therein not later than Saturday,
February 10, 1973, and setting the case for hearing on February 12, 1973,
at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to
consider the comments of the respondents in cases G.R. Nos. L-36142, L36164, and L-36165, as motions to dismiss the petitions therein, and to set
said cases for hearing on the same date and time as L-36236. On that
date, the parties in G.R. No. L-36283 10 agreed that the same be, likewise,
heard, as it was, in fact, heard jointly with the aforementioned cases G.R.
Nos. L-36142, L-36164, L-36165 and L-36236. The hearing, which began on
February 12, 1973, shortly after 9:30 a.m., was continued not only that
afternoon, but, also, on February 13, 14, 15 and 16, morning and
afternoon, after which the parties were granted up to February 24, 1973,
noon, within which to submit their notes of oral arguments and additional
arguments, as well as the documents required of them or whose
presentation was reserved by them. The same resolution granted the
parties until March 1, 1973, to reply to the notes filed by their respective
opponents. Counsel for the petitioners in G.R. Nos. L-36164 and L-36165
filed their aforementioned notes on February 24, 1973, on which date the
Solicitor General sought an extension of time up to March 3, 1973, within
which to file his notes, which was granted, with the understanding that said
notes shall include his reply to the notes already filed by the petitioners in
G.R. Nos. L-36164 a L-36165. Counsel for the petitioners, likewise, moved
and were granted an extension of time, to expire on March 10, 1973, within
which to file, as they did, their notes in reply to those submitted by the
Solicitor General on March 3, 1973. On March 21, 1973, petitioners in L36165 filed a "Manifestation a Supplemental Rejoinder," whereas the Office
of the Solicitor General submitted in all these cases a "Rejoinder
Petitioners' Replies."
This defense or theory, set up by counsel for respondents Gil J. Puyat and
Jose Roy in G.R. No. L-36165, and, also, by the Solicitor General, is
predicated upon the fact that, in Our decision in the plebiscite cases, Mr.
Justice Barredo had expressed the view that the 1935 Constitution had "pro
tanto passed into history" and "been legitimately supplanted by the
Constitution now in force by virtue of Proclamation No. 1102 ..."; that Mr.
Justice Antonio did not feel "that this Court competent to act" in said cases
"in the absence of any judicially discoverable and manageable standards"
and because "the access to relevant information is insufficient to assure
the correct determination of the issue," apart from the circumstance that
"the new constitution has been promulgated and great interests have
already arisen under it" and that the political organ of the Government has
recognized its provisions; whereas, Mr. Justice Esguerra had postulated that
"(w)ithout any competent evidence ... about the circumstances attending
the holding" of the "referendum or plebiscite" thru the Citizens'
Assemblies, he "cannot say that it was not lawfully held" and that,
accordingly, he assumed "that what the proclamation (No. 1102) says on
its face is true and until overcome by satisfactory evidence" he could not
"subscribe to the claim that such plebiscite was not held accordingly"; and
that he accepted "as a fait accompli that the Constitution adopted (by the
1971 Constitutional Convention) on November 30, 1972, has been duly
ratified.
After deliberating on these cases, the members of the Court agreed that
each would write his own opinion and serve a copy thereof on his
colleagues, and this they did. Subsequently, the Court discussed said
opinions and votes were cast thereon. Such individual opinions are
appended hereto.
I am unable to share this view. To begin with, Mr. Justice Barredo

announced publicly, in open court, during the hearing of these cases, that
he was and is willing to be convinced that his aforementioned opinion in
the plebiscite cases should be reconsidered and changed. In effect, he thus
declared that he had an open mind in connection with the cases at bar,
and that in deciding the same he would not necessarily adhere to said
opinion if the petitioners herein succeeded in convincing him that their
view should be sustained.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that,
under these circumstances, "it seems remote or improbable that the
necessary eight (8) votes under the 1935 Constitution, and much less the
ten (10) votes required by the 1972 (1973) Constitution, can be obtained
for the relief sought in the Amended Petition" in G.R. No.
L-36165.
Accordingly, the writer will first express his person opinion on the issues
before the Court. After the exposition his aforesaid opinion, the writer will
make, concurrently with his colleagues in the Court, a resume of summary
of the votes cast by them in these cases.
Secondly, counsel for the aforesaid respondents had apparently assumed

that, under the 1935 Constitution, eight (8) votes are necessary to declare
invalid the contested Proclamation No. 1102. I do not believe that this
assumption is borne out by any provision of said Constitution. Section 10 of
Article VIII thereof reads:
Writer's Personal Opinion

I.
All cases involving the constitutionality of a treaty or law

shall be heard and decided by the Supreme Court in banc,
and no treaty or law may be declared unconstitutional
Alleged academic futility of further proceedings in G.R. L-36165.
30
without the concurrence of two thirds of all the members of

the Court.
duties by public employees or disposing of issues of

general concern shall be made effective in executive
orders.
Pursuant to this section, the concurrence of two-thirds of all the Members

of the Supreme Court is required only to declare "treaty or law"
unconstitutional. Construing said provision, in a resolution dated
September 16, 1949, then Chief Justice Moran, voicing the unanimous view
of the Members of this Court, postulated:
Executive orders fixing the dates when specific laws,

resolutions, or orders are to have or cease to (have) effect
and any information concerning matters of public
moment determined by law, resolution, or executive
orders,
may
be
promulgated
in
an
executive
proclamation, with all the force of an executive order. 14
... There is nothing either in the Constitution or in the

Judiciary Act requiring the vote of eight Justices to nullify a
rule or regulation or an executive order issued by the
President. It is very significant that in the previous drafts of
section 10, Article VIII of the Constitution, "executive order"
and "regulation" were included among those that required
for their nullification the vote of two-thirds of all the
members of the Court. But "executive order" and
"regulation" were later deleted from the final draft (Aruego,
The Framing of the Philippine Constitution, Vol. I, pp. 495,
496), and thus a mere majority of six members of this
Court is enough to nullify them. 11
In fact, while executive order embody administrative acts or commands of

the President, executive proclamations are mainly informative and
declaratory in character, and so does counsel for respondents Gil J. Puyat
and
Jose
Roy
maintain
in
G.R.
No.
L-36165. 15 As consequence, an executive proclamation has no more than
"the force of an executive order," so that, for the Supreme Court to declare
such proclamation unconstitutional, under the 1935 Constitution, the same
number of votes needed to invalidate an executive order, rule or regulation
namely, six (6) votes would suffice.
As regards the applicability of the provisions of the proposed new
Constitution, approved by the 1971 Constitutional Convention, in the
determination of the question whether or not it is now in force, it is obvious
that such question depends upon whether or not the said new Constitution
has been ratified in accordance with the requirements of the 1935
Constitution, upon the authority of which said Constitutional Convention
was called and approved the proposed Constitution. It is well settled that
the matter of ratification of an amendment to the Constitution should be
settled by applying the provisions of the Constitution in force at the time of
the alleged ratification, or the old Constitution. 16
The distinction is not without reasonable foundation. The two thirds vote
(eight [8] votes) requirement, indeed, was made to apply only to treaty
and law, because, in these cases, the participation of the two other
departments of the government the Executive and the Legislative is
present, which circumstance is absent in the case of rules, regulations and
executive orders. Indeed, a law (statute) passed by Congress is subject to
the approval or veto of the President, whose disapproval cannot be
overridden except by the vote of two-thirds (2/3) of all members of each
House of Congress. 12 A treaty is entered into by the President with the
concurrence of the Senate, 13 which is not required in the case of rules,
regulations or executive orders which are exclusive acts of the President.
Hence, to nullify the same, a lesser number of votes is necessary in the
Supreme Court than that required to invalidate a law or treaty.
II
Does the issue on the validity of Proclamation No. 1102 partake of the
nature of a political, and, hence, non-justiciable question?
Although the foregoing refers to rules, regulations and executive orders

issued by the President, the dictum applies with equal force to executive
proclamation, like said Proclamation No. 1102, inasmuch as the authority
to issue the same is governed by section 63 of the Revised Administrative
Code, which provides:
The Solicitor General maintains in his comment the affirmative view and
this is his main defense. In support thereof, he alleges that "petitioners
would have this Court declare as invalid the New Constitution of the
Republic" from which he claims "this Court now derives its authority";
that "nearly 15 million of our body politic from the age of 15 years have
mandated this Constitution to be the New Constitution and the prospect of
unsettling acts done in reliance on it caution against interposition of the
power of judicial review"; that "in the case of the New Constitution, the
government has been recognized in accordance with the New
Constitution"; that "the country's foreign relations are now being
conducted in accordance with the new charter"; that "foreign governments
Administrative acts and commands of the (GovernorGeneral) President of the Philippines touching the
organization or mode of operation of the Government or
rearranging or readjusting any of the districts, divisions,
parts or ports of the (Philippine Islands) Philippines and all
acts and commands governing the general performance of
31
have taken note of it"; that the "plebiscite cases" are "not precedents for
holding questions regarding proposal and ratification justiciable"; and that
"to abstain from judgment on the ultimate issue of constitutionality is not
to abdicate duty."
Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of

the respondents therein that the question whether Presidential Decree No.
73 calling a plebiscite to be held on January 15, 1973, for the ratification or
rejection of the proposed new Constitution, was valid or not, was not a
proper subject of judicial inquiry because, they claimed, it partook of a
political nature, and We unanimously declared that the issue was
a justiciable one. With identical unanimity, We overruled the respondents'
contention in the 1971 habeas corpus cases, 19 questioning Our authority
to determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ of habeas
corpus on August 21, 1971, despite the opposite view taken by this Court
in Barcelona v. Baker 20 and Montenegro v. Castaeda, 21insofar as it
adhered to the former case, which view We, accordingly, abandoned and
refused to apply. For the same reason, We did not apply and expressly
modified, in Gonzales v. Commission on Elections, 22 the political-question
theory adopted inMabanag v. Lopez Vito. 23 Hence, respondents herein
urge Us to reconsider the action thus taken by the Court and to revert to
and follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez
Vito. 24
At the outset, it is obvious to me that We are not being asked to "declare"

the new Constitution invalid. What petitioners dispute is the theory that it
has been validly ratified by the people, especially that they have done
so in accordance with Article XV of the 1935 Constitution. The petitioners
maintain that the conclusion reached by the Chief Executive in the
dispositive portion of Proclamation No. 1102 is not borne out by the
whereases preceding the same, as the predicates from which said
conclusion was drawn; that the plebiscite or "election" required in said
Article XV has not been held; that the Chief Executive has no authority,
under the 1935 Constitution, to dispensewith said election or plebiscite;
that the proceedings before the Citizens' Assemblies did not constitute and
may not be considered as such plebiscite; that the facts of record
abundantly show that the aforementioned Assemblies could not have been
held throughout the Philippines from January 10 to January 15, 1973; and
that, in any event, the proceedings in said Assemblies are null and void as
an alleged ratification of the new Constitution proposed by the 1971
Constitutional Convention, not only because of the circumstances under
which said Assemblies had been created and held, but, also, because
persons disqualified to vote under Article V of the Constitution were
allowed to participate therein, because the provisions of our Election Code
were not observed in said Assemblies, because the same were not held
under the supervision of the Commission on Elections, in violation of
section 2 of Article X of the 1935 Constitution, and because the existence
of Martial Law and General Order No. 20, withdrawing or suspending the
limited freedom to discuss the merits and demerits of said proposed
Constitution, impaired the people's freedom in voting thereon,
particularly a viva voce, as it was done in many instances, as well as their
ability to have a reasonable knowledge of the contents of the document on
which they were allegedly called upon to express their views.
The reasons adduced in support thereof are, however, substantially the

same as those given in support of the political-question theory advanced in
said habeas corpus and plebiscite cases, which were carefully considered
by this Court and found by it to be legally unsound and constitutionally
untenable. As a consequence, Our decision in the aforementioned habeas
corpus cases partakes of the nature and effect of a stare decisis, which
gained added weight by its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of similar
character are justiciable, not political, is plain and simple. One of the
principal bases of the non-justiciability of so-called political questions is the
principle of separation of powers characteristic of the Presidential
system of government the functions of which are classified or divided,
by reason of their nature, into three (3) categories, namely: 1) those
involving the making of laws, which are allocated to the legislative
department; 2) those concerned mainly with the enforcement of such laws
and of judicial decisions applying and/or interpreting the same, which
belong to the executive department; and 3) those dealing with the
settlement of disputes, controversies or conflicts involving rights, duties or
prerogatives that are legally demandable and enforceable, which are
apportioned to courts of justice. Within its own sphere butonly
within such sphere each department is supreme and independent of the
others, and each is devoid of authority, not only to encroach upon the
powers or field of action assigned to any of the other departments, but,
also, to inquire into or pass upon the advisability or wisdom of the acts
performed, measures taken or decisions made by the other departments
provided that such acts, measures or decisions are within the area
allocated thereto by the Constitution. 25
Referring now more specifically to the issue on whether the new

Constitution proposed by the 1971 Constitutional Convention has been
ratified in accordance with the provisions of Article XV of the 1935
Constitution is a political question or not, I do not hesitate to state that the
answer must be in the negative. Indeed, such is the position taken by this
Court, 17 in an endless line of decisions, too long to leave any room for
possible doubt that said issue is inherently and essentially justiciable.
Such, also, has been the consistent position of the courts of the United
States of America, whose decisions have a persuasive effect in this
jurisdiction, our constitutional system in the 1935 Constitution being
patterned after that of the United States. Besides, no plausible reason has,
to my mind, been advanced to warrant a departure from said position,
consistently with the form of government established under said
Constitution..
32
This principle of separation of powers under the presidential system goes

hand in hand with the system of checks and balances, under which each
department is vested by the Fundamental Law with some powers to
forestall, restrain or arrest a possible or actual misuse or abuse of powers
by the other departments. Hence, the appointing power of the Executive,
his pardoning power, his veto power, his authority to call the Legislature or
Congress to special sessions and even to prescribe or limit the object or
objects of legislation that may be taken up in such sessions, etc.
Conversely, Congress or an agency or arm thereof such as the
commission on Appointments may approve or disapprove some
appointments made by the President. It, also, has the power of
appropriation, to "define, prescribe, and apportion the jurisdiction of the
various courts," as well as that of impeachment. Upon the other hand,
under the judicial power vested by the Constitution, the "Supreme Court
and ... such inferior courts as may be established by law," may settle or
decide with finality, not only justiciable controversies between private
individuals or entities, but, also, disputes or conflicts between a private
individual or entity, on the one hand, and an officer or branch of the
government, on the other, or between two (2) officers or branches of
service, when the latter officer or branch is charged with acting without
jurisdiction or in excess thereof or in violation of law. And so, when a power
vested
in
said
officer
or
branch
of
the
government
is absolute or unqualified, the acts in the exercise of such power are said to
be political in nature, and, consequently, non-justiciable or beyond judicial
review. Otherwise, courts of justice would be arrogating upon themselves a
power conferred by the Constitution upon another branch of the service to
the exclusion of the others. Hence, in Taada v. Cuenco, 26 this Court
quoted with approval from In re McConaughy, 27 the following:
vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher

vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St.
Rep.
220.
Thus
theLegislature
may
in
its
discretion determine whether it will pass law or submit a
proposed constitutional amendment to the people. The
courts have no judicial control over such matters, not
merely becausethey involve political questions, but
because they are matters which the people have by the
Constitution delegated to the Legislature. The Governor
may exercise the powers delegated him, free from judicial
control, so long as he observes the laws act within the
limits of the power conferred. Hisdiscretionary acts cannot
be controllable, not primarily because they are of a politics
nature, but because the Constitution and laws have placed
the particular matter under his control. But every officer
under constitutional government must act accordingly to
law and subject its restrictions, and every departure
therefrom or disregard thereof must subject him to that
restraining and controlling power of the people, acting
through the agency of the judiciary; for it must be
remembered that the people act through courts, as well as
through the executive or the Legislature. One department
is just as representative as the other, and the judiciary is
the department which is charged with the special duty of
determining the limitations which the law places upon all
official action. The recognition of this principle, unknown
except in Great Britain and America, is necessary, to "the
end that the government may be one of laws and not of
men"
words
which
Webster
said
were the
greatest contained in any written constitutional document."
(Emphasis supplied.)
"At the threshold of the case we are met with the assertion
that the questions involved are political, and not judicial. If
this is correct, the court has no jurisdiction as the
certificate of the state canvassing board would then be
final, regardless of the actual vote upon the amendment.
The question thus raised is a fundamental one; but it has
been so often decided contrary to the view contended for
by the Attorney General that it would seem to be finally
settled.
and, in an attempt to describe the nature of a political question in terms, it

was hoped, understandable to the laymen, We added that "... the term
"political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy" in matters concerning the
government of a State, as a body politic. "In other words, in the language
of Corpus Juris Secundum (supra), it refers to "those questions which,
under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the government." It is
concerned with issues dependent upon the wisdom, not legality, of a
particular measure."
xxx xxx xxx

"... What is generally meant, when it is said that a question
is political, and not judicial, is that it is a matter which is to
be exercised by the people in their primary political
capacity, or that it has been specifically delegated to some
other
department
or
particular
officer
of
the
government, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re
Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green
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
33
limitations particularly those prescribed or imposed by the Constitution

would be set at naught. What is more, the judicial inquiry into such issue
and the settlement thereof are the main functions of courts of justice under
the Presidential form of government adopted in our 1935 Constitution, and
the system of checks and balances, one of its basic predicates. As a
consequence, We have neither the authority nor the discretion to decline
passing upon said issue, but are under the ineluctable obligation made
particularly more exacting and peremptory by our oath, as members of the
highest Court of the land, to support and defend the Constitution to
settle it. This explains why, in Miller v. Johnson, 28 it was held that courts
have a "duty, rather than a power", to determine whether another branch
of the government has "kept within constitutional limits." Not satisfied with
this postulate, the court went farther and stressed that, if the Constitution
provides how it may be amended as it is in our 1935 Constitution
"then, unless the manner is followed, the judiciary as the interpreter of
that constitution, will declare the amendment invalid." 29 In fact, this very
Court speaking through Justice Laurel, an outstanding authority on
Philippine Constitutional Law, as well as one of the highly respected and
foremost leaders of the Convention that drafted the 1935 Constitution
declared, as early as July 15, 1936, that "(i)n times of social disquietude or
political excitement, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of conflict,
the judicialdepartment is the only constitutional organ which can be called
upon to determine the proper allocation of powers between the several
departments" of the government. 30
States, became a member of the Union. In 1843, it adopted a new

Constitution.
Prior thereto, however, many citizens had become dissatisfied with the
charter government. Memorials addressed by them to the Legislature
having failed to bring about the desired effect, meetings were held and
associations formed by those who belonged to this segment of the
population which eventually resulted in a convention called for the
drafting of a new Constitution to be submitted to the people for their
adoption or rejection. The convention was not authorized by any law of the
existing government. The delegates to such convention framed a new
Constitution which was submitted to the people. Upon the return of the
votes cast by them, the convention declared that said Constitution had
been adopted and ratified by a majority of the people and became the
paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number of
citizens of the state, contested, however, the validity of said proceedings.
This notwithstanding, one Thomas W. Dorr, who had been elected governor
under the new Constitution of the rebels, prepared to assert authority by
force of arms, and many citizens assembled to support him. Thereupon,
the charter government passed an Act declaring the state under Martial
Law and adopted measures to repel the threatened attack and subdue the
rebels. This was the state of affairs when the defendants, who were in the
military service of the charter government and were to arrest Luther, for
engaging in the support of the rebel government which was never able
to exercise any authority in the state broke into his house.
The Solicitor General has invoked Luther v. Borden 31 in support of his

stand that the issue under consideration is non-justiciable in nature.
Neither the factual background of that case nor the action taken therein by
the Federal Supreme Court has any similarity with or bearing on the cases
under consideration.
Meanwhile, the charter government had taken measures to call its own
convention to revise the existing form of government. Eventually, a new
constitution was drafted by a convention held under the authority of the
charter government, and thereafter was adopted and ratified by the
people. "(T)he times and places at which the votes were to be given, the
persons who were to receive and return them, and the qualifications of the
voters having all been previously authorized and provided for by law
passed by the charter government," the latter formally surrendered all of
its powers to the new government, established under its authority, in May
1843, which had been in operationuninterruptedly since then.
Luther v. Borden was an action for trespass filed by Luther with the Circuit
Court of the United States against Borden and others for having forcibly
entered into Luther's house, in Rhode Island, sometime in 1842. The
defendants who were in the military service of said former colony of
England, alleged in their defense that they had acted in obedience to the
commands of a superior officer, because Luther and others were engaged
in a conspiracy to overthrow the government by force and the state had
been placed by competent authority under Martial Law. Such authority was
the charter government of Rhode Island at the time of the Declaration of
Independence, for unlike other states which adopted a new Constitution
upon secession from England Rhode Island retained its form of
government under a British Charter, making only such alterations, by acts
of the Legislature, as were necessary to adapt it to its subsequent
condition as an independent state. It was under this form of government
when Rhode Island joined other American states in the Declaration of
Independence and, by subsequently ratifying the Constitution of the United
About a year before, or in May 1842, Dorr, at the head of a military force,
had made an unsuccessful attempt to take possession of the state arsenal
in Providence, but he was repulsed, and, after an "assemblage of some
hundreds of armed men under his command at Chepatchet in the June
following, which dispersed upon approach of the troops of the old
government, no further effort was made to establish" his government. "...
until the Constitution of 1843" adopted under the auspices of the charter
government "went into operation, the charter government continued to
34
assert its authority and exercise its powers and to enforce obedience
throughout the state ... ."
the cases at bar. To begin with, the case did not involve a federal question,
but one purely municipal in nature. Hence, the Federal Supreme Court was
"bound to follow the decisions of the State tribunals" of Rhode Island
upholding the constitution adopted under the authority of the charter
government. Whatever else was said in that case constitutes, therefore,
an obiter dictum. Besides, no decision analogous to that rendered by the
State Court of Rhode Island exists in the cases at bar. Secondly, the states
of the Union have a measure of internal sovereignty upon which the
Federal Government may not encroach, whereas ours is a unitary form of
government, under which our local governments derive their authority
from the national government. Again,unlike our 1935 Constitution, the
charter or organic law of Rhode Island contained no provision on the
manner, procedure or conditions for its amendment.
Having offered to introduce evidence to prove that the constitution of the

rebels had been ratified by the majority of the people, which the Circuit
Court rejected, apart from rendering judgment for the defendants, the
plaintiff took the case for review to the Federal Supreme Court which
affirmed the action of the Circuit Court, stating:
It is worthy of remark, however, when we are referring to
the authority of State decisions, that the trial of Thomas W.
Dorr took place after the constitution of 1843 went into
operation. The judges who decided that case held their
authority under that constitution and it is admitted on all
hands that it was adopted by the people of the State, and
is the lawful and established government. It is the decision,
therefore, of a State court, whose judicial authority to
decide upon the constitution and laws of Rhode Island is
not questioned by either party to this controversy,
although the government under which it acted was framed
and adopted under the sanction and laws of the charter
government.
Then, too, the case of Luther v. Borden hinged more on the question of
recognition of government, than on recognition of constitution, and there is
a fundamental difference between these two (2) types of recognition, the
first being generally conceded to be a political question, whereas the
nature of the latter depends upon a number of factors, one of them being
whether the new Constitution has been adopted in the manner prescribed
in the Constitution in force at the time of the purported ratification of the
former, which is essentially a justiciable question. There was, in Luther v.
Borden, a conflict between two (2) rival governments, antagonistic to each
other, which is absent in the present cases. Here, the Government
established under the 1935 Constitution is the very same government
whose Executive Department has urged the adoption of the new or revised
Constitution proposed by the 1971 Constitutional Convention and now
alleges that it has been ratified by the people.
The point, then, raised here has been already decided by

the courts of Rhode Island. The question relates,
altogether, to the constitution and laws of that State, and
the well settled rule in this court is, that the courts of the
United States adopt and follow the decisions of the State
courts in questions which concern merely the constitution
and laws of the State.
In short, the views expressed by the Federal Supreme Court in Luther v.

Borden, decided in 1849, on matters otherthan those referring to its power
to review decisions of a state court concerning the constitution and
government ofthat state, not the Federal Constitution or Government, are
manifestly neither, controlling, nor even persuasive in the present cases,
having as the Federal Supreme Court admitted no authority whatsoever
to pass upon such matters or to review decisions of said state court
thereon. In fact, referring to that case, the Supreme Court of Minnessota
had the following to say:
Upon what ground could the Circuit Court of the United

States which tried this case have departed from this rule,
and disregarded and overruled the decisions of the courts
of Rhode Island? Undoubtedly the courts of the United
States have certain powers under the Constitution and laws
of the United States which do not belong to the State
courts. But the power of determining that a State
government has been lawfully established, which the
courts of the State disown and repudiate, is not one of
them. Upon such a question the courts of the United States
are bound to follow the decisions of the State tribunals,
and must therefore regard the charter government as the
lawful and established government during the time of this
contest. 32
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by

those who assert that the courts have no power to
determine questions of a political character. It is interesting
historically, but it has not the slightest application to the
case at bar. When carefully analyzed, it appears that it
merely determines that the federal courts will accept as
final and controlling a decision of the highest court of a
state upon a question of the construction of the
Constitution of the state. ... . 33
It is thus apparent that the context within which the case of Luther v.
Borden was decided is basically and fundamentally different from that of
35
Baker v. Carr, 34 cited by respondents, involved an action to annul a

Tennessee statute apportioning the seats in the General Assembly among
the counties of the State, upon the theory that the legislation violated the
equal protection clause. A district court dismissed the case upon the
ground, among others, that the issue was a political one, but, after a
painstaking review of the jurisprudence on the matter, the Federal
Supreme Court reversed the appealed decision and held that said
issue was justiciable and non-political, inasmuch as:"... (d)eciding whether
a matter has in any measure been committed by the Constitution
to another branch of government, or whether the action of that
branch exceeds whatever authority has been committed, is itself a delicate
exercise in constitutional interpretation, and is a responsibility of this Court
as ultimate interpreter of the Constitution ... ."
and that it is not only subject to judicial inquiry, but, also, that it is the
Court's bounden duty to decide such question.
Similarly, in Powell v. McCormack, 35 the same Court, speaking through

then Chief Justice Warren, reversed a decision of the Court of Appeals of
New York affirming that of a Federal District Court, dismissing Powell's
action for a declaratory judgment declaring thereunder that he whose
qualifications were uncontested had been unlawfully excluded from the
90th Congress of the U.S. Said dismissal was predicated upon the
ground, inter alia, that the issue was political, but the Federal Supreme
Court held that it was clearly a justiciable one.
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the
President "is without authority to create the Citizens' Assemblies" through
which, respondents maintain, the proposed new Constitution has been
ratified; that said Assemblies "are without power to approve the proposed
Constitution"; 3) that the President "is without power to proclaim the
ratification by the Filipino people of the proposed Constitution"; and 4) that
"the election held (in the Citizens' Assemblies) to ratify the proposed
The Supreme Court of Minnessota undertook a careful review of American

jurisprudence on the matter. Owing to the lucidity of its appraisal thereof,
We append the same to this opinion as Annex A thereof.
Apart from substantially reiterating these grounds support of said negative

view, the petitioners in L-36164 contend: 1) that the President "has no
power to call a plebiscite for the ratification or rejection" of the proposed
new Constitution or "to appropriate funds for the holding of the said
plebiscite"; 2) that the proposed new or revised Constitution "is vague and
incomplete," as well as "contains provisions which are beyond the powers
of the 1971 Convention to enact," thereby rendering it "unfit for ...
submission the people;" 3) that "(t)he period of time between November
1972 when the 1972 draft was approved and January 11-15, 1973," when
the Citizens' Assemblies supposedly ratified said draft, "was too short,
worse still, there was practically no time for the Citizens' Assemblies to
discuss the merits of the Constitution which the majority of them have not
read a which they never knew would be submitted to them ratification until
they were asked the question "do you approve of the New Constitution?"
during the said days of the voting"; and that "(t)here was altogether no
freedom discussion and no opportunity to concentrate on the matter
submitted to them when the 1972 draft was supposedly submitted to the
Citizens' Assemblies for ratification."
The Supreme Court of the United States has meaningfully postulated that
"the courts cannot reject as 'no law suit' " because it allegedly involves a
political question "a bona fide controversy as to whether some action
denominated "political" exceeds constitutional authority." 37
III
Has the proposed new or revised Constitution been ratified conformably to
said Art. XV of the 1935 Constitution?
After an, exhaustive analysis of the cases on this subject, the Court
concluded:
The authorities are thus practically uniform in holding that
whether a constitutional amendment has been properly
adopted according to the requirements of an existing
Constitution is a judicial question. There can be little doubt
that the consensus of judicial opinion is to the effect that it
is the absolute dutyof the judiciary to determine whether
the Constitution has been amended in the manner required
by the Constitution, unless a special tribunal has been
created to determine the question; and even then many of
the courts hold that the tribunal cannot be permitted to
illegally amend the organic law. ... . 36
Petitioner in L-36236 added, as arguments in support of the negative view,

that : 1) "(w)ith a government-controlled press, there can never be a fair
and proper submission of the proposed Constitution to the people"; and 2)
Proclamation No. 1102 is null and void "(i)nasmuch as the ratification
process" prescribed "in the 1935 Constitution was not followed."
In the light of the foregoing, and considering that Art. XV of our 1935
Constitution prescribes the method or procedure for its amendment, it is
clear to my mind that the question whether or not the revised Constitution
drafted by the 1971 Constitutional Convention has been ratified in
accordance with said Art. XV is a justiciable one and non-political in nature,
36
Besides adopting substantially some of the grounds relied upon by the

petitioners in the above-mentioned cases, the petitioners in L-36283 argue
that "(t)he creation of the Citizens' Assemblies as the vehicle for the
ratification of the Constitution was a deception upon the people since the
President announced the postponement of the January 15, 1973 plebiscite
to either February 19 or March 5, 1973." 38
Section 1. Suffrage may be exercised by male citizens of

the Philippines not otherwise disqualified by law, who are
twenty-one years of age or over and are able to read and
write, and who shall have resided in the Philippines for one
year and in the municipality wherein they propose to vote
for at least six months preceding the election. The National
Assembly shall extend the right of suffrage to women, if in
a plebiscite which shall be held for that purpose within two
years after the adoption of this Constitution, not less than
three hundred thousand women possessing the necessary
qualifications shall vote affirmatively on the question.
The reasons adduced by the petitioners in L-36165 in favor of the negative

view have already been set forth earlier in this opinion. Hence, it is
unnecessary to reproduce them here. So it is, with respect to the positions
taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose
Roy although more will be said later about them and by the Solicitor
General, on behalf of the other respondents in that case and the
respondents in the other cases.
Sections 1 and 2 of Art. X of the Constitution ordain in part:

Section 1. There shall be an independent Commission on
Elections composed of a Chairman and two other Members
to be appointed by the President with the consent of the
Commission on Appointments, who shall hold office for a
term of nine years and may not be reappointed. ...
1. What is the procedure prescribed by the 1935 Constitution for its

amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are
essential, namely:
xxx xxx xxx

1. That the amendments to the Constitution be proposed either by
Congress or by a convention called for that purpose, "by a vote of threefourths of all the Members of the Senate and the House of Representatives
voting separately," but "in joint session assembled";
Sec.
2.
The
Commission
on
Elections
shall
have exclusive charge
of
the
enforcement
and
administration of all laws relative to the conduct of
elections and shall exercise all other functions which may
be conferred upon it by law. It shall decide, save those
involving the right to vote, all administrative questions,
affecting elections, including the determination of the
number and location of polling places, and the
appointment of election inspectors and of other election
officials. All
law
enforcement
agencies
and
instrumentalities of the Government, when so required by
the Commission, shall act as its deputiesfor the purpose
of insuring fee, orderly, and honest elections. The
decisions, orders, and rulings of the Commission shall be
subject to review by the Supreme Court.
2. That such amendments be "submitted to the people for their ratification"

at an "election"; and
3. That such amendments be "approved by a majority of the votes cast" in
said election.
Compliance with the first requirement is virtually conceded, although the
petitioners in L-36164 question the authority of the 1971 Constitutional
Convention to incorporate certain provisions into the draft of the new or
revised Constitution. The main issue in these five (5) cases hinges,
therefore, on whether or not the last two (2) requirements have been
complied with.
xxx xxx xxx
39
2. Has the contested draft of the new or revised Constitution been

submitted to the people for their ratification conformably to Art. XV of the
Constitution?
a. Who may vote in a plebiscite under Art. V of the

Constitution?
In this connection, other provisions of the 1935 Constitution concerning

"elections" must, also, be taken into account, namely, section I of Art. V
and Art. X of said Constitution. The former reads:
Petitioners maintain that section 1 of Art. V of the Constitution is a

limitation upon the exercise of the right of suffrage. They claim that no
other persons than "citizens of the Philippines not otherwise disqualified by
law, who are twenty-one years of age or over and are able to read and
37
write, and who shall have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months preceding
the election," may exercise the right of suffrage in the Philippines. Upon
the other hand, the Solicitor General contends that said provision
merely guarantees the right of suffrage to persons possessing the
aforementioned qualifications and none of the disqualifications, prescribed
by law, and that said right may be vested by competent authorities in
personslacking some or all of the aforementioned qualifications,
and possessing some of the aforesaid disqualifications. In support of this
view, he invokes the permissive nature of the language "(s)uffrage may
be exercised" used in section 1 of Art. V of the Constitution, and the
provisions of the Revised Barrio Charter, Republic Act No. 3590, particularly
sections 4 and 6 thereof, providing that citizens of the Philippines
"eighteen years of age or over," who are registered in the list of barrio
assembly members, shall be members thereof and may participate as such
in the plebiscites prescribed in said Act.
dissenting vote," although there was some debate on whether the

Fundamental Law should specify the language or dialect that the voter
could read and write, which was decided in the negative. 43
What is relevant to the issue before Us is the fact that the constitutional
provision
under
consideration
was
meant
to
be
and
is
a grant or conferment of a right to persons possessing the qualifications
and none of the disqualifications therein mentioned, which in turn,
constitute a limitation of or restriction to said right, and cannot,
accordingly, be dispensed with, except by constitutional amendment.
Obviously, every such constitutional grant or conferment of a right is
necessarily a negation of the authority of Congress or of any other branch
of the Government to deny said right to the subject of the grant and, in
this sense only, may the same partake of the nature of a guarantee. But,
this does not imply not even remotely, that the Fundamental Law allows
Congress or anybody else to vest in those lacking the qualifications and
having the disqualifications mentioned in the Constitution the right of
suffrage.
I cannot accept the Solicitor General's theory. Art. V of the Constitution

declares who may exercise the right of suffrage, so that those lacking the
qualifications therein prescribed may not exercise such right. This view is
borne out by the records of the Constitutional Convention that drafted the
1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was
largely based on the report of the committee on suffrage of the Convention
that drafted said Constitution which report was, in turn, "strongly
influenced by the election laws then in force in the Philippines ... ." 40 " Said
committee had recommended: 1) "That the right of suffrage should
exercised only by male citizens of the Philippines." 2) "That should
be limited to those who could read and write." 3) "That the duty to vote
should be madeobligatory." It appears that the first recommendation was
discussed extensively in the Convention, and that, by way of compromise,
it was eventually agreed to include, in section 1 of Art. V of the
Constitution, the second sentence thereof imposing upon the National
Assembly established by the original Constitution instead of the
bicameral Congress subsequently created by amendment said Constitution
the duty to "extend the right of suffrage women, if in a plebiscite to, be
held for that purpose within two years after the adoption of this
Constitution, not less than three hundred thousand women possessing the
necessary qualifications shall vote affirmatively on the question." 41
At this juncture, it is noteworthy that the committee on suffrage

responsible for the adoption of section 1 of Art. V of the Constitution was
"strongly influenced by the election laws then in force in the Philippines."
Our first Election Law was Act 1582, passed on January 9, 1907, which was
partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into
the Administrative Code of 1916 Act 2657 as chapter 20 thereof, and
then in the Administrative Code of 1917 Act 2711 as chapter 18
thereof, which, in turn, was amended by Act 3387, approved on December
3, 1927. Sections 431 and 432 of said Code of 1917, prescribing,
respectively, the qualifications for and disqualifications from voting, are
quoted below. 44 In all of these legislative acts, the provisions concerning
the qualifications of voters partook of the nature of a grant or recognition
of the right of suffrage, and, hence, of adenial thereof to those who lacked
the requisite qualification and possessed any of the statutory
disqualifications. In short, the history of section 1, Art. V of the
Constitution, shows beyond doubt than the same conferred not
guaranteed the authority to persons having the qualifications prescribed
therein and none of disqualifications to be specified in ordinary laws and,
necessary implication, denied such right to those lacking any said
qualifications, or having any of the aforementioned disqualifications.
The third recommendation on "compulsory" voting was, also debated upon

rather extensively, after which it was rejected by the Convention. 42 This
accounts, in my opinion, for the permissive language used in the first
sentence of said Art. V. Despite some debates on the age qualification
amendment having been proposed to reduce the same to 18 or 20, which
were rejected, and the residence qualification, as well as the
disqualifications to the exercise of the right of suffrage the second
recommendation limiting the right of suffrage to those who could "read and
write" was in the language of Dr. Jose M. Aruego, one of the Delegates to
said Convention "readily approved in the Convention without any
This view is further bolstered by the fact that the 1971 Constitutional
Convention sought the submission to a plebiscite of a "partial amendment"
to said section 1 of Art. V of the 1935 Constitution, by reducing the voting
age from twenty-one (21) years to eighteen (18) years, which, however,
did not materialize on account of the decision of this Court in Tolentino v.
Commission on Elections, 45 granting the writs, of prohibition and injunction
therein applied for, upon the ground that, under the Constitution, all of the
amendments adopted by the Convention should be submitted in "an
election" or a single election, not separately or in several or distinct
38
elections, and that the proposed amendment sought to be submitted to a

plebiscite was not even a complete amendment, but a "partial
amendment" of said section 1, which could be amended further, after its
ratification, had the same taken place, so that the aforementioned partial
amendment
was,
for
legal
purposes,
no
more
than
a provisional or temporary amendment. Said partial amendment was
predicated upon the generally accepted contemporary construction that,
under the 1935 Constitution, persons below twenty-one (21) years of age
could not exercise the right of suffrage, without a previous amendment of
the Constitution.
important if not fundamental, such as the basic changes introduced in

the draft of the revised Constitution adopted by the 1971 Constitutional
Convention, which a intended to be in force permanently, or, at least, for
many decades, and to affect the way of life of the nation and,
accordingly, demands greater experience and maturity on the part of the
electorate than that required for the election of public officers, 49 whose
average term ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years,
regardless of whether or not they possessed the other qualifications laid
down in both the Constitution and the present Election Code, 50 and of
whether or not they are disqualified under the provisions of said
Constitution and Code, 51 or those of Republic Act No. 3590, 52 have
participated and voted in the Citizens' Assemblies that have allegedly
ratified the new or revised Constitution drafted by the 1971 Constitutional
Convention.
Upon the other hand, the question, whether 18-year-old members of barrio
assemblies may vote in barrio assembly plebiscites is, to say the least, a
debatable one. Indeed, there seems to be a conflict between the last
paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the
"majority vote of all the barrio assembly members" (which include all barrio
residents 18 years of age or over, duly registered in the list of barrio
assembly members) is necessary for the approval, in an assembly
plebiscite, of "any budgetary, supplemental appropriations or special tax
ordinances," whereas, according to the paragraph preceding the
penultimate one of said section, 47 "(a)ll duly registered barrio assembly
membersqualified to vote" who, pursuant to section 10 of the same Act,
must be citizens "of the Philippines, twenty-one years of age or over, able
to read and write," and residents the barrio "during the six months
immediately preceding election, duly registered in the list of voters" and "
otherwise disqualified ..." just like the provisions of present and past
election codes of the Philippines and Art. V of the 1935 Constitution
"may vote in the plebiscite."
In fact, according to the latest official data, the total number of registered
voters 21 years of age or over in the entire Philippines, available in January
1973, was less than 12 million. Yet, Proclamation No. 1102 states that
14,976,56 "members of all the Barangays (Citizens Assemblies) voted for
the adoption of the proposed Constitution, as against ... 743,869 who voted
for its rejection," whereas, on the question whether or not the people still
wanted a plebiscite to be called to ratify the new Constitution, "...
14,298,814 answered that there was no need for a plebiscite and that the
vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite." In other words, it is conceded that the number of people
who allegedly voted at the Citizens' Assemblies for exceeded the number
of registered voters under the Election Code in force in January 1973.
I believe, however, that the apparent conflict should resolved in favor of

the 21-year-old members of the assembly, not only because this
interpretation is in accord with Art. V the Constitution, but, also, because
provisions of a Constitution particularly of a written and rigid one, like
ours generally accorded a mandatory status unless the intention to the
contrary is manifest, which is not so as regards said Art. V for otherwise
they would not have been considered sufficiently important to be included
in the Fundamental Law of the land. 48 Besides, it would be illogical, if not
absurd, believe that Republic Act No. 3590 requires, for the most
important measures for which it demands in addition to favorable action
of the barrio council the approval of barrio assembly through
a plebiscite, lesser qualifications than those prescribed in dealing with
ordinary measures for which such plebiscite need not be held.
It is thus clear that the proceedings held in such Citizens' Assemblies

and We have more to say on this point in subsequent pages were
fundamentally irregular, in that persons lacking the qualifications
prescribed in section 1 of Art. V of the Constitution were allowed to vote in
said Assemblies. And, since there is no means by which the invalid votes of
those less than 21 years of age can be separated or segregated from those
of the qualified voters, the proceedings in the Citizens' Assemblies must be
considered null and void. 53
It has been held that "(t)he power to reject an entire poll ... should be
exercised ... in a case where it is impossible to ascertain with reasonable
certainty the true vote," as where "it is impossible to separate the legal
votes from the illegal or spurious ... ." 54
It is similarly inconceivable that those who drafted the 1935 Constitution

intended section 1 of Art. V thereof to applyonly to elections of public
officers, not to plebiscites for the ratification of amendments to the
Fundamental Law or revision thereof, or of an entirely new Constitution,
and permit the legislature to require lesser qualifications for such
ratification, notwithstanding the fact that the object thereof much more
In Usman v. Commission on Elections, et al.,
55
We held:
Several circumstances, defying exact description and

dependent mainly on the factual milieu of the particular
39
controversy, have the effect of destroying the integrity and

authenticity of disputed election returns and of avoiding
their prima facie value and character. If satisfactorily
proven, although in a summary proceeding, such
circumstances as alleged by the affected or interested
parties, stamp the election returns with the indelible mark
of falsity and irregularity, and, consequently, of
unreliability, and justify their exclusion from the canvass.
Elections ... ." The point to be stressed here is the term "independent."
Indeed, why was the term used?
In the absence of said constitutional provision as to the independence of
the Commission, would it have been depends upon either Congress or the
Judiciary? The answer must be the negative, because the functions of the
Commission "enforcement and administration" of election laws are
neither legislative nor judicial in nature, and, hence, beyond the field
allocated to either Congress or courts of justice. Said functions are by their
nature essentially executive, for which reason, the Commission would be
under the "control" of the President, pursuant to section 10, paragraph (1)
of Art. VII of the Constitution, if Art. X thereof did not explicitly declare that
it (the Commission) is an "independent" body. In other words, in amending
the original 1935 Constitution, by inserting therein said Art. X, on the
Commission
on
Elections,
the
purpose
was
to
make
said
Commission independent principally of the Chief Executive.
Then, too, the 1935 Constitution requires "a majority of the votes cast" for
a proposed amendment to the Fundamental Law to be "valid" as part
thereof, and the term "votes cast" has a well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville
County Commissioners, 65 N.W. 956, 64 Minn. 16, to have
been used as an equivalent of "ballots cast." 56
And the reason therefor is, also, obvious. Prior to the creation of the
Commission on Elections as a constitutional organ, election laws in the
Philippines were enforced by the then Department of the Interior, through
its Executive Bureau, one of the offices under the supervision and control
of said Department. The same like other departments of the Executive
Branch of the Government was, in turn, under the control of the Chief
Executive, before the adoption of the 1935 Constitution, and had been
until the abolition of said Department, sometime ago under the control
of the President of the Philippines, since the effectivity of said Fundamental
Law. Under the provisions thereof, the Executive could so use his power of
control over the Department of the Interior and its Executive Bureau as to
place the minority party at such a great, if not decisive, disadvantage, as
to deprive it, in effect, of the opportunity to defeat the political party in
power, and, hence, to enable the same to perpetuate itself therein. To
forestall this possibility, the original 1935 Constitution was amended by the
establishment of the Commission on Elections as a constitutional
body independent primarily of the President of the Philippines.
The word "cast" is defined as "to deposit formally or

officially." 57
It seems
to
us
that
a vote
is
cast
when
a ballot is deposited indicating a "choice." ... The word
"cast" means "deposit (a ballot) formally or officially ... .
... In simple words, we would define a "vote cast" as the
exercise on a ballot of the choice of the voter on the
measure proposed. 58
In short, said Art. XV envisages with the term "votes cast" choices
made on ballots not orally or by raising by the persons taking part in
plebiscites. This is but natural and logical, for, since the early years of the
American regime, we had adopted the Australian Ballot System, with its
major characteristics, namely, uniform official ballotsprepared and
furnished by the Government and secrecy in the voting, with the
advantage of keeping records that permit judicial inquiry, when necessary,
into the accuracy of the election returns. And the 1935 Constitution has
been consistently interpreted in all plebiscites for the ratification rejection
of proposed amendments thereto, from 1935 to 1967. Hence, the viva
voce voting in the Citizens' Assemblies was and is null and void ab initio.
The independence of the Commission was sought to be strengthened by

the long term of office of its members nine (9) years, except those first
appointed 59 the longest under the Constitution, second only to that of
the Auditor General 60; by providing that they may not be removed from
office except by impeachment, placing them, in this respect, on the same
plane as the President, the Vice-President, the Justices of the Supreme
Court and the Auditor General; that they may not be reappointed; that
their salaries, "shall be neither increased nor diminished during their term
of office"; that the decisions the Commission "shall be subject to review by
the Supreme Court" only 61; that "(n)o pardon, parole, or suspension
sentence for the violation of any election law may be granted without the
favorable recommendation of the Commission" 62; and, that its chairman
and members "shall not, during the continuance in office, engage in the
practice of any profession or intervene, directly or indirectly, in the
b. How should the plebiscite be held? (COMELEC supervision indispensable;

essential requisites)
Just as essential as compliance with said Art. V of the 19 Constitution is
that of Art. X thereof, particularly its sections 1 and 2. Indeed, section 1
provides that "(t)here shall be an independent Commission on
40
management or control of any private enterprise which in anyway may

affected by the functions of their office; nor shall they, directly or indirectly,
be financially interested in any contract with the Government or any
subdivision or instrumentality thereof." 63 Thus, the framers of the
amendment to the original Constitution of 1935 endeavored to do
everything possible protect and insure the independence of each member
of the Commission.
Few laws may be found with such meticulous and elaborate set of
provisions aimed at "insuring free, orderly, and honest election," as
envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by the socalled Barangays or Citizens' Assemblies. And no reasons have been given,
or even sought to be given therefor. In many, if not most, instances, the
election were held a viva voce, thus depriving the electorate of the right to
vote secretly one of the most, fundamental and critical features of our
election laws from time immemorial particularly at a time when the
same was of utmost importance, owing to theexistence of Martial Law.
With respect to the functions thereof as a body, section 2 of said Art. X

ordains that "(t)he Commission on Elections shall have exclusive charge of
the enforcement and administration all laws relative to the conduct of
elections," apart from such other "functions which may be conferred upon
it by law." It further provides that the Commission "shall decide, save those
involving the right to vote, all administrative question affecting elections,
including the determination of the number and location of polling places,
and the appointment of election inspectors and of other election officials."
And, to forests possible conflicts or frictions between the Commission, on
one hand, and the other offices or agencies of the executive department,
on the other, said section 2 postulates that "(a)ll law enforcement agencies
and instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring free,
orderly, and honest elections." Not satisfied with this, it declares, in effect,
that "(t)he decisions, orders, and ruling of the Commission" shall not be
subject to review, except by the Supreme Court.
In Glen v. Gnau, 65 involving the casting of many votes, openly, without

complying with the requirements of the law pertinent thereto, it was held
that the "election officers" involved "cannot be too strongly condemned"
therefor and that if they "could legally dispense with such requirement ...
they could with equal propriety dispense with all of them, including the one
that the vote shall be by secret ballot, or even by ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of the proposed
Constitution drafted by the 1971 Constitutional Convention, or on
December 1, 1972, Presidential Decree No. 73 (on the validity of which
which was contested in the plebiscite cases, as well as in the 1972 habeas
corpus cases 66 We need not, in the case of bar, express any opinion)
was issued, calling a plebiscite, to be held on January 15, 1973, at which
the proposed Constitution would be submitted to the people for ratification
or rejection; directing the publication of said proposed Constitution; and
declaring, inter alia, that "(t)he provision of the Election Code of 1971,
insofar as they are not inconsistent" with said decree excepting those
"regarding right and obligations of political parties and candidates"
"shall apply to the conduct of the plebiscite." Indeed, section 2 of said
Election Code of 1971 provides that "(a)ll elections of public officers except
barrio officials and plebiscites shall be conducted in the manner provided
by this Code." General Order No. 20, dated January 7, 1973, postponing
until further notice, "the plebiscite scheduled to be held on January 15,
1973," said nothing about the procedure to be followed in plebiscite to take
place at such notice, and no other order or decree has been brought to Our
attention, expressly or impliedly repealing the provisions of Presidential
Decree 73, insofar as said procedure is concerned.
In accordance with the letter and spirit of said Art. X of the Constitution,
Rep. Act No. 6388, otherwise known as the Election Code of 1971,
implements the constitutional powers of the Commission on Elections and
grants additional powers thereto, some of which are enumerated in
sections 5 and 6 of said Act, quoted below. 64 Moreover, said Act
contains, inter alia, detailed provisions regulating contributions and other
(corrupt) practices; the establishment of election precincts; the designation
and arrangement of polling places, including voting booths, to protect the
secrecy of the ballot; formation of lists of voters, the identification and
registration of voters, the proceedings therefor, as well as for the inclusion
in, or exclusion or cancellation from said list and the publication thereof;
the establishment of municipal, provincial and files of registered voters; the
composition and appointment of board of election inspectors; the
particulars of the official ballots to be used and the precautions to be taken
to insure authenticity thereof; the procedure for the casting of votes; the
counting of votes by boards of inspectors; the rules for the appreciation of
ballots and the preparation and disposition of election returns; the
constitution and operation of municipal, provincials and national boards of
canvassers; the presentation of the political parties and/or their candidates
in each election precinct; the proclamation of the results, including, in the
case of election of public officers, election contests; and the jurisdiction of
courts of justice in cases of violation of the provisions of said Election Code
and the penalties for such violations.
Upon the other hand, said General Order No. 20 expressly suspended "the
provisions of Section 3 of Presidential Decree No. 73 insofar as they allow
free public discussion of proposed Constitution ... temporarily suspending
effects of Proclamation No. 1081 for the purposes of free open dabate on
the proposed Constitution ... ." This specific mention of the portions of the
decrees or orders or instructions suspended by General Order No. 20
necessarily implies that all other portions of said decrees, orders or
instructions and, hence, the provisions of Presidential Decree No. 73
outlining the procedure to be followed in the plebiscite for ratification or
41
rejection of the proposed Constitution remained in force, assuming that

said Decree is valid.
supervision of the very officers and agencies of the Executive Department

sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse
still, said officers and agencies of the 1935 Constitution would be favored
thereby, owing to the practical indefinite extension of their respective
terms of office in consequence of section 9 of the Transitory Provisions,
found in Art. XVII of the proposed Constitution, without any elections
therefor. And the procedure therein mostly followed is such that there isno
reasonable means of checking the accuracy of the returns files by the
officers who conducted said plebiscites. This is another patent violation of
Art. of the Constitution which can hardly be sanctioned. And, since the
provisions of this article form part of the fundamental scheme set forth in
the 1935 Constitution, as amended, to insure the "free, orderly, and
honest" expression of the people's will, the aforementioned violation
thereof renders null and void the contested proceedings or alleged
plebiscite in the Citizens' Assemblies, insofar as the same are claimed to
have ratified the revised Constitution proposed by the 1971 Constitutional
Convention. "... (a)ll the authorities agree that the legal definition of an
election, as well as that which is usually and ordinarily understood by the
term, is a choosing or as election by those having a right to participate (in
the selection) of those who shall fill the offices, or of the adoption or
rejection of any public measure affecting the territory involved. 15 Cyc.
279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13
Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A.
354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law
Dictionary. 68
It is claimed that by virtue of Presidential Decree No. 86-A the text of

which is quoted below 67 the Executive declared, inter alia, that the
collective views expressed in the Citizens' Assemblies "shall
be considered in the formulation of national policies or programs and,
wherever practicable, shall be translated into concrete and specific
decision"; that such Citizens' Assemblies "shall consider vital national
issues ... like the holding of the plebiscite on the new Constitution ... and
others in the future, which shall serve as guide or basis for action or
decision by the national government"; and that the Citizens' Assemblies
"shall conduct between January 10 and 15, 1973, a referendum on
important national issues, including those specified in paragraph 2 hereof,
and submit the results thereof to the Department of Local Governments
and Community Development immediately thereafter, ... ." As in
Presidential Decree No. 86, this Decree No. 86-A does not and cannot
exclude the exercise of the constitutional supervisory power of the
Commission on Elections or its participation in the proceedings in said
Assemblies, if the same had been intended to constitute the "election" or
Plebiscite required Art. V of the 1935 Constitution. The provision of Decree
No. 86-A directing the immediate submission of the result thereof to the
Department of Local Governments Community Development is not
necessarily inconsistent with, and must be subordinate to the
constitutional power of the Commission on Elections to exercise its
"exclusive authority over the enforcement and administration of all laws to
the conduct of elections," if the proceedings in the Assemblies would
partake of the nature of an "election" or plebiscite for the ratification or
rejection of the proposed Constitution.
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
We are told that Presidential Decree No. 86 was further amended by

Presidential Decree No. 86-B, dated 1973, ordering "that important national
issues shall from time to time; be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with Presidential Decree No. 86-A
dated January 5, 1973 and that the initial referendum include the matter of
ratification of the Constitution by the 1971 Constitutional Convention" and
that "(t)he Secretary of the Department of Local Governments and
Community Development shall insure the implementation of this order." As
in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing
directives do not necessarily exclude exercise of the powers vested by the
1935 Constitution in the Commission on Elections, even if the Executive
had the authority to repeal Art. X of our Fundamental Law which he does
not possess. Copy of Presidential Decree No. 86-B is appended hereto as
Annex B hereof.
Respondents maintain the affirmative, relying upon Proclamation No. 1102,

the validity of which is precisely being contested by petitioners herein.
Respondents claim that said proclamation is "conclusive" upon this Court,
or is, at least, entitled to full faith and credence, as an enrolled bill; that the
proposed Constitution has been, in fact, ratified, approved or adopted by
the "overwhelming" majority of the people; that Art. XV of the 1935
Constitution has thus been "substancially" complied with; and that the
Court refrain from passing upon the validity of Proclamation No. 1102, not
only because such question is political in nature, but, also, because should
the Court invalidate the proclamation, the former would, in effect, veto the
action of the people in whom sovereignty resides and from its power are
derived.
The point is that, such of the Barrio Assemblies as were held took place
without the intervention of the Commission on Elections, and without
complying with the provisions of the Election Code of 1971 or even of those
of Presidential Decree No. 73. What is more, they were held under the
The major flaw in this process of rationalization is that it assumes, as a

fact, the very premise on which it is predicated, and which, moreover, is
42
contested by the petitioners. As the Supreme Court of Minnessota has

aptly put it
of the voting in the to the Department of Local Governments and

Community Development, which tabulated the results of the voting in the
citizens' assemblies throughout the Philippines and then turned them over
to Mr. Franciso Cruz, as President or acting President of the National
Association or Federation, whereupon Mr. Cruz, acting in a ceremonial
capacity, reported said results (tabulated by the Department of
Governments and Community Development) to the Chief Executive, who,
accordingly, issued Proclamation No. 1102.
... every officer under a constitutional government must act

according to law and subject to its restrictions, and every
departure therefrom or disregard thereof must subject him
to the restraining and controlling of the people, acting
official action. ... .
The record shows, however, that Mr. Cruz was not even a member of any
barrio council since 1972, so that he could possibly have been
a member on January 17, 1973, of a municipal association of presidents of
barrio or ward citizens' assemblies, much less of a Provincial, City or
National Association or Federation of Presidents of any such provincial or
city associations.
Accordingly, the issue boils downs to whether or not the Executive acted
within the limits of his authority when he certified in Proclamation No. 1102
"that the Constitution proposed by the nineteen hundred and seventy-one
(1971) Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines and has thereby come into
effect."
Secondly, at the conclusion of the hearing of these cases February 16,

1973, and in the resolution of this Court of same date, the Solicitor General
was asked to submit, together with his notes on his oral argument, a true
copy of aforementioned report of Mr. Cruz to the President and of
"(p)roclamation, decree, instruction, order, regulation or circular, if any,
creating or directing or authorizing creation, establishment or organization"
of said municipal, provincial and national associations, but neither a copy
of alleged report to the President, nor a copy of any "(p)roclamation,
decree, instruction, order, regulation or circular," has been submitted to
this Court. In the absence of said report, "(p)roclamation, decree,
instruction,"
etc.,
Proclamation
No.
1102
is
devoid
of
any factual and legalfoundation. Hence, the conclusion set forth in the
dispositive portion of said Proclamation No. 1102, to the effect that the
proposed new or revised Constitution had been ratified by majority of the
votes cast by the people, can not possibly have any legal effect or value.
In this connection, it is not claimed that the Chief Executive had personal
knowledge of the data he certified in said proclamation. Moreover, Art. X of
the 1935 Constitution was precisely inserted to place beyond the Executive
the power to supervise or even exercise any authority whatsoever over
"all laws relative to the conduct of elections," and, hence, whether the
elections are for the choice or selection of public officers or for the
ratification or rejection of any proposed amendment, or revision of the
Fundamental Law, since the proceedings for the latter are, also, referred to
in said Art. XV as "elections".
The theory that said proclamation is "conclusive upon Court is clearly

untenable. If it were, acts of the Executive and those of Congress could not
possibly be annulled or invalidated by courts of justice. Yet, such is not the
case. In fact, even a resolution of Congress declaring that a given person
has been elected President or Vice-President of the Philippines as provided
in the Constitution, 69 is not conclusive upon the courts. It is no
more than prima facieevidence of what is attested to by said
resolution. 70 If assailed directly in appropriate proceedings, such as an
election protest, if and when authorized by law, as it is in the Philippines,
the Court may receive evidence and declare, in accordance therewith, who
was duly elected to the office involved. 71 If prior to the creation of the
Presidential Electoral Tribunal, no such protest could be filed, it
was not because the resolution of Congress declaring who had been
elected President or Vice-President was conclusive upon courts of justice,
but because there was no law permitting the filing of such protest and
declaring what court or body would hear and decide the same. So, too, a
declaration to the effect that a given amendment to the Constitution or
The Solicitor General stated, in his argument before this Court, that he had
been informed that there was in each municipality a municipal association
of presidents of the citizens' assemblies for each barrio of the municipality;
that the president of each such municipal association formed part of a
provincial or city association of presidents of such municipal associations;
that the president of each one of these provincial or city associations in
turn formed part of a National Association or Federation of Presidents of
such Provincial or City Associations; and that one Francisco Cruz from
Pasig, Rizal, as President of said National Association or Federation,
reported to the President of the Philippines, in the morning of January 17,
1973, the total result of the voting in the citizens' assemblies all over the
country from January 10 to January 15, 1973. The Solicitor General further
intimated that the said municipal associations had reported the results of
the citizens' assemblies in their respective municipalities to the
corresponding Provincial Association, which, in turn, transmitted the results
43
revised or new Constitution has been ratified by a majority of the votes

cast therefor, may be duly assailedin court and be the object of judicial
inquiry, in direct proceedings therefor such as the cases at bar and
the issue raised therein may and should be decided in accordance with the
evidence presented.
administration
of
all
laws
relative
to
the
conduct
of
elections," independently of the Executive, and there is not even a
certification by the Commission in support of the alleged results of the
citizens' assemblies relied upon in Proclamation No. 1102 apart from the
fact that on January 17, 1973 neither the alleged president of the
Federation of Provincial or City Barangays nor the Department of Local
Governments had certified to the President the alleged result of the
citizens' assemblies all over the Philippines it follows necessarily that,
from a constitutional and legal viewpoint, Proclamation No. 1102
is not even prima facie evidence of the alleged ratification of the proposed
Constitution.
The case of In re McConaughy 72 is squarely in point. "As the Constitution

stood from the organization of the state" of Minnessota "all taxes
were required to be raised under the system known as the 'general
property tax.' Dissatisfaction with the results of this method and the
development of more scientific and satisfactory methods of raising revenue
induced the Legislature to submit to the people an amendment to the
Constitution which provided merely that taxes shall be uniform upon the
same class of subjects. This proposed amendment was submitted at the
general election held in November, 1906, and in due time it
was certified by the state canvassing board and proclaimed by the
Governor as having been legally adopted. Acting upon the assumption that
the amendment had become a part of the Constitution, the Legislature
enacted statutes providing for a State Tax Commission and a mortgage
registry tax, and the latter statute, upon the same theory, was held
constitutional" by said Court. "The district court found that the amendment
had no in fact been adopted, and on this appeal" the Supreme Court was
"required to determine the correctness of that conclusion."
Referring particularly to the cases before Us, it will be noted that, as

pointed out in the discussion of the preceding topic, the new or revised
Constitution
proposed
by
the
1971
Constitutional
Convention
was not ratified in accordance with the provisions of the 1935 Constitution.
In fact, it has not even been, ratified in accordance with said proposed
Constitution, the minimum age requirement therein for the exercise of the
right of suffrage beingeighteen (18) years, apart from the fact that Art. VI
of the proposed Constitution requires "secret" voting, which was not
observed in many, if not most, Citizens' Assemblies. Besides, both the
1935 Constitution and the proposed Constitution require a "majority of the
votes cast" in an election or plebiscite called for the ratification of an
amendment or revision of the first Constitution or the effectivity of the
proposed Constitution, and the phrase "votes cast" has been construed to
mean "votes made in writing not orally, as it was in many Citizens'
Assemblies. 75
Referring to the effect of the certification of the State Board of Canvassers

created by the Legislature and of theproclamation made by the Governor
based thereon, the Court held: "It will be noted that this board does no
more than tabulate the reports received from the various county board and
add up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9
L.R.A. (U.S.) 1221. It is settled law that the decisions of election officers,
and canvassing boards are not conclusive and that the final decision must
rest with the courts, unless the law declares that the decisions of the board
shall be final" and there is no such law in the cases at bar. "... The
correctness of the conclusion of the state board rests upon the correctness
of the returns made by the county boards and it isinconceivable that it was
intended that this statement of result should be final and conclusive
regardless of the actual facts. The proclamation of the Governor
adds nothing in the way of conclusiveness to the legal effect of the action
of the canvassing board. Its purpose is to formally notify the people of the
state of the result of the voting as found by the canvassing board. James
on Const. Conv. (4th Ed.) sec. 523."
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165,
asserts openly that Art. XV of the Constitution has not been complied with,
and since the alleged substantial compliance with the requirements thereof
partakes of the nature of a defense set up by the other respondents in
these cases, the burden of proving such defense which, if true, should
be within their peculiar knowledge is clearly on such respondents.
Accordingly, if despite the extensive notes and documents submitted by
the parties herein, the members of the Court do not know or are not
prepared to say whether or not the majority of the people or of those who
took part in the Citizens' Assemblies have assented to the proposed
Constitution, the logical step would be to give due course to these cases,
require the respondents to file their answers, and the plaintiffs their reply,
and, thereafter, to receive the pertinent evidence and then proceed to the
determination of the issues raised thereby. Otherwise, we would be placing
upon the petitioners the burden of disproving a defense set up by the
respondents, who have not so farestablished the truth of such defense.
In Bott v. Wartz, 73 the Court reviewed the statement of results of the

election made by the canvassing board, in order that the true results could
be judicially determined. And so did the court in Rice v. Palmer. 74
Even more important, and decisive, than the foregoing is the circumstance
that there is ample reason to believe that many, if not most, of the people
did not know that the Citizens' Assemblies were, at the time they were
held, plebiscites for the ratification or rejection of the proposed
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive"

charge of the Commission on Elections, "the enforcement and
44
Constitution. Hence, in Our decision in the plebiscite cases, We said, inter

alia:
15, 1973, were "plebiscites," in effect, accelerated, according to the theory

of the Solicitor General, for the ratification of the proposed Constitution? If
said Assemblies were meant to be the plebiscites or elections envisaged in
Art. XV of the Constitution, what, then, was the "plebiscite" postponed by
General Order No. 20? Under these circumstances, it was only reasonable
for the people who attended such assemblies to believe that the same
were not an "election" or plebiscite for the ratification or adoption of said
proposed Constitution.

open debate on the proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the

Citizens' Assemblies, namely:
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?

known or announced officially. Then again, Congress was,
[4] Do you like the plebiscite to be held later?

[5] Do you like the way President Marcos is running the
affairs of the government? [Bulletin Today, January 10,
[6] Do you approve of the citizens assemblies as the base
of popular government to decide issues of national
interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify the new
Constitution?
[9] Do you want the elections to be held in November,
1973 in accordance with the provisions of the 1935
Constitution?
And, apparently, the parties in said cases entertained the same belief, for,
on December 23, 1972 four (4) days after the last hearing of said
cases 76 the President announced the postponement of the plebiscite
scheduled by Presidential Decree No. 73 to be held on January 15, 1973,
after consultation with the Commission on Elections and the leaders of
Congress, owing to doubts on the sufficiency of the time available to
translate the proposed Constitution into some local dialects and to comply
with some pre-electoral requirements, as well as to afford the people a
reasonable opportunity to be posted on the contents and implications of
said transcendental document. On January 7, 1973, General Order No. 20
was issued formally, postponing said plebiscite "until further notice." How
can said postponement be reconciled with the theory that the proceedings
in the Citizens' Assemblies scheduled to be held from January 10 to January
[10] If the elections would not be held, when do you want

the next elections to be called?
[11] Do you want martial law to continue? [Bulletin Today,
January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in
a plebiscite for the ratification of a proposed Constitution or of a proposed
45
amendment thereto. Secondly, neither is the language of question No. 7

"Do you approve the new Constitution?" One approves "of" the act of
another which does not need such approval for the effectivity of said act,
which the first person, however, finds to be good, wise satisfactory. The
approval of the majority of the votes cast in plebiscite is,
however, essential for an amendment to the Constitution to be valid as
part thereof. Thirdly, if the proceedings in the Citizens' Assemblies
constituted a plebiscite question No. 8 would have been unnecessary and
improper, regardless of whether question No. 7 were answered
affirmatively or negatively. If the majority of the answers to question No. 7
were in the affirmative, the proposed Constitution would have become
effective and no other plebiscite could be held thereafter in connection
therewith, even if the majority of the answers to question No. 8 were, also,
in the affirmative. If the majority of the answers to question No. 7 were in
the negative, neither may another plebiscite be held, even if the majority
of the answers to question No. 8 were in the affirmative. In either case, not
more than one plebiscite could be held for the ratification or rejection of
the proposed Constitution. In short, the insertion of said two (2) questions
apart from the other questions adverted to above indicates strongly
that the proceedings therein did not partake of the nature of a plebiscite or
election for the ratification or rejection of the proposed Constitution.
On January 11, ... another instruction from the top was

received to include the original five questions among those
to be discussed and asked in the Citizens' Assembly
meetings. With this latest order, we again had to make
modifications in our instructions to all those managing and
supervising the holding of the Citizens' Assembly meetings
throughout the province. ... Aside from the coordinators we
had from the Office of the Governor, the splendid
cooperation and support extended by almost all
government officials and employees in the province,
particularly of the Department of Education, PC and PACD
personnel, provided us with enough hands to trouble shoot
and implement sudden changes in the instructions anytime
and anywhere needed. ...
... As to our people, in general, their enthusiastic
participation showed their preference and readiness to
accept
this
new
method
of
government
to
people consultation in shaping up government policies.
Thus, as late as January 10, 1973, the Bataan officials had
to suspend "all scheduled Citizens' Assembly meetings ..." and call all
available officials "... to discuss with them the new set of guidelines and
materials to be used ... ." Then, "on January 11 ... another instruction from
the top was received to include the original five questions among those
be discussed and asked in the Citizens' Assembly meetings. With this latest
order, we again had to make modifications in our instructions to all those
managing and supervising holding of the Citizens' Assembly meetings
throughout province. ... As to our people, in general, their enthusiastic
participation showed their preference and readiness to accept the new
method of government to people consultation in shaping up government
policies."
Indeed, I can not, in good conscience, declare that the proposed

Constitution has been approved or adopted by the people in the citizens'
assemblies all over the Philippines, when it is, to my mind, a matter of
judicial knowledge that there have been no such citizens' assemblies
in many parts of Manila and suburbs, not to say, also, in other parts of the
Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated
January 15, 1973, to the Chief Executive, the former reported:
... This report includes a resumee (sic) of the activities we
undertook in effecting the referendum on the eleven
questions you wanted our people consulted on and the
Summary of Results thereof for each municipality and for
the whole province.
This communication manifestly shows: 1) that, as late a January 11, 1973,

the Bataan officials had still to discuss not put into operation means
and ways to carry out the changing instructions from the top on how to
organize the citizens' assemblies, what to do therein and even what
questions or topics to propound or touch in said assemblies; 2) that the
assemblies would involve no more than consultations or dialogues between
people and government not decisions be made by the people; and 3)
that said consultations were aimed only at "shaping up government
policies" and, hence could not, and did not, partake of the nature of a
plebiscite for the ratification or rejection of a proposed amendment of a
new or revised Constitution for the latter does not entail the formulation of
a policy of the Government, but the making of decision by the people on
the new way of life, as a nation, they wish to have, once the proposed
Constitution shall have been ratified.
xxx xxx xxx

... Our initial plans and preparations, however, dealt only
on the original five questions. Consequently, when we
received an instruction on January 10 to change the
questions, we urgently suspended all scheduled Citizens
Assembly meetings on that day and called all Mayors,
Chiefs of Offices and other government officials to another
conference to discuss with them the new set of guidelines
and materials to be used.
46
If this was the situation in Bataan one of the provinces nearest to Manila
as late as January 11, 1973, one can easily imagine the predicament of
the local officials and people in the remote barrios in northern and
southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In
fact, several members of the Court, including those of their immediate
families and their household, although duly registered voters in the area of
Greater Manila, were not even notified that citizens' assemblies would be
held in the places where their respective residences were located. In the
Prohibition and Amendment case, 77 attention was called to the "duty cast
upon the court of taking judicial cognizance of anything affecting the
existence
and
validity
of
any
law
or
portion
of
the
Constitution ... ." In line with its own pronouncement in another case, the
Federal Supreme Court of the United States stressed, in Baker v.
Carr, 78 that "a court is not at liberty to shut its eyes to an obvious mistake,
when the validity of the lawdepends upon the truth of what is declared."
fundamentally executive in nature to "take care that the laws be

faithfully executed," in the language of our 1935 Constitution. 79
Consequently, I am not prepared to concede that the acts the officers and
offices of the Executive Department, in line with Proclamation No. 1102,
connote a recognition thereof o an acquiescence thereto. Whether they
recognized the proposed Constitution or acquiesce thereto or not is
something that cannot legally, much less necessarily or even normally, be
deduced from their acts in accordance therewith, because the are bound to
obey and act in conformity with the orders of the President, under whose
"control" they are, pursuant to the 1935 Constitution. They have
absolutely no other choice, specially in view of Proclamation No. 1081
placing the Philippines under Martial Law. Besides, by virtue of the very
decrees, orders and instructions issued by the President thereafter, he had
assumed all powers of Government although some question his
authority to do so and, consequently, there is hardly anything he has
done since the issuance of Proclamation No. 1102, on January 17, 1973
declaring that the Constitution proposed by the 1971 Constitutional
Convention has been ratified by the overwhelming majority of the people
that he could not do under the authority he claimed to have under
Martial Law, since September 21, 1972, except the power of supervision
over inferior courts and its personnel, which said proposed Constitution
would place under the Supreme Court, and which the President has not
ostensibly exercised, except as to some minor routine matters, which the
Department of Justice has continued to handle, this Court having preferred
to maintain the status quo in connection therewith pending final
determination of these cases, in which the effectivity of the
aforementioned Constitution is disputed.
In the light of the foregoing, I cannot see how the question under
consideration can be answered or resolved otherwise than in the negative.
V
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and has
been run, since January 17, 1971, under the Constitution drafted by the
1971 Constitutional Convention; that the political department of the
Government has recognized said revised Constitution; that our foreign
relations are being conducted under such new or revised Constitution; that
the Legislative Department has recognized the same; and that the people,
in general, have, by their acts or omissions, indicated their conformity
thereto.
Then, again, a given department of the Government cannot generally be

said to have "recognized" its own acts. Recognition normally connotes the
acknowledgment by a party of the acts of another. Accordingly, when a
subordinate officer or office of the Government complies with the
commands of a superior officer or office, under whose supervision and
control he or it is, the former merely obeys the latter. Strictly speaking, and
from a legal and constitutional viewpoint, there is no act of recognition
involved therein. Indeed, the lower officer or office, if he or it acted
otherwise, would just be guilty of insubordination.
As regards the so-called political organs of the Government, gather that

respondents refer mainly to the offices under the Executive Department. In
a sense, the latter performs some functions which, from a constitutional
viewpoint, are politics in nature, such as in recognizing a new state or
government, in accepting diplomatic representatives accredited to our
Government, and even in devising administrative means and ways to
better carry into effect. Acts of Congress which define the goals or
objectives thereof, but are either imprecise or silent on the particular
measures to be resorted to in order to achieve the said goals or delegate
the power to do so, expressly or impliedly, to the Executive. This,
notwithstanding, the political organ of a government that purports to be
republican is essentially the Congress or Legislative Department. Whatever
may be the functions allocated to the Executive Department specially
under a written, rigid Constitution with a republican system of Government
like ours the role of that Department is inherently, basically and
Thus, for instance, the case of Taylor v. Commonwealth 80 cited by

respondents herein in support of the theory of the people's acquiescence
involved a constitution ordained in 1902 and "proclaimed by a
convention duly called by a direct vote of the people of the state to revise
and amend the Constitution of 1869. The result of the work of that
Convention has been recognized, accepted and acted upon as
the only valid Constitution of the State" by
47
1. The "Governor of the State in swearing fidelity to it and proclaiming it, as

directed thereby";
Assembly established in the Transitory Provisions of said Constitution.

Individual acts of recognition by members of our legislature, as well as of
other collegiate bodies under the government, are invalid as acts of said
legislature or bodies, unless its members have performed said acts
in session duly assembled, or unless the law provides otherwise, and there
is no such law in the Philippines. This is a well-established principle of
Administrative Law and of the Law of Public Officers, and no plausible
reason has been adduced to warrant departure therefrom. 81
2. The "Legislature in its formal official act adopting a joint resolution, July
15, 1902, recognizing the Constitution ordained by the Convention ...";
3. The "individual oaths of its members to support it, and by its having
been engaged for nearly a year, in legislating under it and putting its
provisions
into
operation ...";
Indeed, if the members of Congress were generally agreeable to the

proposed Constitution, why did it become necessary to padlock its
premises to prevent its meeting in session on January 22, 1973, and
thereafter as provided in the 1935 Constitution? It is true that,
theoretically, the members of Congress, if bent on discharging their
functions under said Constitution, could have met in any other place, the
building in which they perform their duties being immaterial to the legality
of their official acts. The force of this argument is, however, offset or
dissipated by the fact that, on or about December 27, 1972, immediately
after a conference between the Executive, on the one hand, and members
of Congress, on the other, some of whom expressed the wish to meet in
session on January 22, 1973, as provided in the 1935 Constitution, a Daily
Express columnist (Primitivo Mijares) attributed to Presidential Assistant
Guillermo de Vega a statement to the effect that "'certain members of the
Senate appear to be missing the point in issue' when they
reportedly insisted on taking up first the question of convening Congress."
The Daily Express of that date, 82 likewise, headlined, on its front page, a
"Senatorial Plot Against 'Martial Law Government' Disclosed". Then, in its
issue of December 29, 1972, the same paper imputed to the Executive an
appeal "to diverse groups involved in aconspiracy to undermine" his
powers" under martial law to desist from provoking a constitutional
crisis ... which may result in the exercise by me of authority I have not
exercised."
4. The "judiciary in taking the oath prescribed thereby to support it and by

enforcing its provisions ..."; and
5. The "people in their primary capacity by peacefully accepting it and
acquiescing in it, by registering as voters under it to the extent of
thousands throughout the State, and by voting, under its provisions, at a
general election for their representatives in the Congress of the United
States."
Note that the New Constitution of Virginia, drafted by a convention whose
members were elected directly by the people, was not submitted to the
people for ratification or rejection thereof. But, it was recognized, not by
the convention itself, but by other sectors of the Government, namely, the
Governor; the Legislature not merely by individual acts of its members,
but by formal joint resolution of its two (2) chambers; by the judiciary; and
by the people, in the various ways specified above. What is more, there
was no martial law. In the present cases, none of the foregoing acts of
acquiescence was present. Worse still, there is martial law, the strict
enforcement of which was announced shortly before the alleged citizens'
assemblies. To top it all, in the Taylor case, the effectivity of the contested
amendment was not contested judicially until about one (1) year after the
amendment had been put into operation in all branches of the
Government, and complied with by the people who participated in the
elections held pursuant to the provisions of the new Constitution. In the
cases under consideration, the legality of Presidential Decree No. 73 calling
a plebiscite to be held on January 15, 1973, was impugned as early as
December 7, 1972, or five (5) weeks before the scheduled plebiscite,
whereas the validity of Proclamation No. 1102 declaring on January 17,
1973, that the proposed Constitution had been ratified despite General
Order No. 20, issued on January 7, 1972, formally and officially suspending
the plebiscite until further notice was impugned as early as January 20,
1973, when L-36142 was filed, or three (3) days after the issuance of
Proclamation No. 1102.
No matter how good the intention behind these statement may have been,
the idea implied therein was too clear anominous for any member of
Congress who thought of organizing, holding or taking part in a session of
Congress, not to get the impression that he could hardly do so without
inviting or risking the application of Martial Law to him. Under these
conditions, I do not feel justified in holding that the failure of the members
of Congress to meet since January 22, 1973, was due to their recognition,
acquiescence in or conformity with the provisions of the aforementioned
Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081,
placing the entire Philippines under Martial Law, neither am I prepared to
declare that the people's inaction as regards Proclamation No. 1102, and
their compliance with a number of Presidential orders, decrees and/or
instructions some or many of which have admittedly had salutary effects
issued subsequently thereto amounts, constitutes or attests to a
It is further alleged that a majority of the members of our House of

Representatives and Senate have acquiesced in the new or revised
Constitution, by filing written statements opting to serve in the Ad Interim
48
ratification, adoption or approval of said Proclamation No. 1102. In the

words of the Chief Executive, "martial law connotespower of the gun,
meant coercion by the military, and compulsion and intimidation." 83 The
failure to use the gun against those who comply with the orders of the
party wielding the weapon does not detract from the intimidation that
Martial Law necessarily connotes. It may reflect the good, reasonable and
wholesome attitude of the person who has the gun, either pointed at
others, without pulling the trigger, or merely kept in its holster, but not
without warning that he may or would use it if he deemed it necessary.
Still, the intimidation is there, and inaction or obedience of the people,
under these conditions, is not necessarily an act of conformity or
acquiescence. This is specially so when we consider that the masses are,
by and large,unfamiliar with the parliamentary system, the new form of
government introduced in the proposed Constitution, with the particularity
that it is not even identical to that existing in England and other parts of
the world, and that even experienced lawyers and social scientists find it
difficult to grasp the full implications of some provisions incorporated
therein.
and the records do not show that any such certification, to the President
of the Philippines or to the President Federation or National Association of
presidents of Provincial Associations of presidents of municipal association
presidents of barrio or ward assemblies of citizens would not, legally and
constitutionally, be worth the paper on which it is written. Why? Because
said Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection of a
proposed amendment or revision of the Constitution and, hence, to
tabulate the results thereof. Worse still, it is the department which,
according to Article X of the Constitution, should not and must not be all
participate in said plebiscite if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 84 the
Highest Court of the United States that courts "willnot stand
impotent before an obvious instance of a manifestly unauthorized exercise
of power." 85
I cannot honestly say, therefore, that the people impliedly or expressly
indicated their conformity to the proposed Constitution.
As regards the applicability to these cases of the "enrolled bill" rule, it is

well to remember that the same refers to a document certified to the
President for his action under the Constitution by the Senate
President and the Speaker of the House of Representatives, and attested to
by the Secretary of the Senate and the Secretary of the House of
Representatives, concerning legislative measures approved by the two
Houses of Congress. The argument of the Solicitor General is, roughly, this:
If the enrolled bill is entitled to full faith and credence and, to this extent, it
is conclusive upon the President and the judicial branch of the
Government, why should Proclamation No. 1102 merit less consideration
than in enrolled bill?
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about the
procedure followed in these five (5) cases. In this connection, it should be
noted that the Court has not decided whether or not to give due course to
the petitions herein or to require the respondents to answer thereto.
Instead, it has required the respondents to comment on the respective
petitions with three (3) members of the voting to dismiss them outright
and then considers comments thus submitted by the respondents as
motions to dismiss, as well as set the same for hearing. This was due to the
transcendental nature of the main issue raised, the necessity of deciding
the same with utmost dispatch, and the main defense set up by
respondents herein, namely, the alleged political nature of said issue,
placing the same, according to respondents, beyond the ambit of judicial
inquiry and determination. If this defense was sustained, the cases could
readily be dismissed; but, owing to the importance of the questions
involved, a reasoned resolution was demanded by public interest. At the
same time, respondents had cautioned against a judicial inquiry into the
merits of the issues posed on account of the magnitude of the evil
consequences, it was claimed, which would result from a decision thereon,
if adverse to the Government.
Before answering this question, I would like to ask the following: If, instead
of being certified by the aforementioned officers of Congress, the so-called
enrolled bill were certified by, say, the President of the Association of Sugar
Planters and/or Millers of the Philippines, and the measure in question were
a proposed legislation concerning Sugar Plantations and Mills sponsored by
said Association, which even prepared the draft of said legislation, as well
as lobbied actually for its approval, for which reason the officers of the
Association, particularly, its aforementioned president whose honesty
and integrity are unquestionable were present at the deliberations in
Congress when the same approved the proposed legislation, would the
enrolled bill rule apply thereto? Surely, the answer would have to be in the
negative. Why? Simply, because said Association President has absolutely
no official authority to perform in connection therewith, and, hence, his
certification is legally, as good as non-existent.
As a matter of fact, some of those issues had been raised in the plebiscite
cases, which were dismissed as moot and academic, owing to the issuance
of Proclamation No. 1102 subsequently to the filing of said cases, although
before the rendition of judgment therein. Still one of the members of the
Similarly, a certification, if any, of the Secretary of the Department of Local

Governments and Community Development about the tabulated results of
the voting in the Citizens Assemblies allegedly held all over the Philippines
49
Court (Justice Zaldivar) was of the opinion that the aforementioned issues
should be settled in said cases, and he, accordingly, filed an opinion
passing upon the merits thereof. On the other hand, three (3) members of
the Court Justices Barredo, Antonio and Esguerra filed separate
opinions favorable to the respondents in the plebiscite cases, Justice
Barredo holding "that the 1935 Constitution has pro tanto passed into
history and has been legitimately supplanted by the Constitution in force
by virtue of Proclamation 1102." 86 When the petitions at bar were filed, the
same three (3) members of the Court, consequently, voted for the
dismissal of said petitions. The majority of the members of the Court did
not share, however, either view, believing that the main question that
arose before the rendition of said judgment had not been sufficiently
discussed and argued as the nature and importance thereof demanded.
ratified in accordance with Article XV of the 1935 Constitution, either

strictly, substantially, or has been acquiesced in by the people or majority
thereof; that said proposed Constitution is not in force and effect; and that
the 1935 Constitution is still the Fundamental Law of the Land, without
prejudice to the submission of said proposed Constitution to the people at
a plebiscite for its ratification or rejection in accordance with Articles V, X
and XV of the 1935 Constitution and the provisions of the Revised Election
Code in force at the time of such plebiscite.
Perhaps others would feel that my position in these cases overlooks what
they might consider to be the demands of "judicial statesmanship,"
whatever may be the meaning of such phrase. I am aware of this
possibility,
if
not
probability;
but
"judicial
statesmanship,"
though consistent with Rule of Law, cannot prevail over the latter. Among
consistent ends or consistent values, there always is a hierarchy, a rule of
priority.
The parties in the cases at bar were accordingly given every possible
opportunity to do so and to elucidate on and discuss said question. Thus,
apart from hearing the parties in oral argument for five (5) consecutive
days morning and afternoon, or a total of exactly 26 hours and 31
minutes the respective counsel filed extensive notes on their or
arguments, as well as on such additional arguments as they wished to
submit, and reply notes or memoranda, in addition to rejoinders thereto,
aside from a sizeable number of document in support of their respective
contentions, or as required by the Court. The arguments, oral and written,
submitted have been so extensive and exhaustive, and the documents
filed in support thereof so numerous and bulky, that, for all intents and
purposes, the situation is as if disregarding forms the petitions had
been given due course and the cases had been submitted for decision.
We must realize that the New Society has many achievements which would
have been very difficult, if not impossible, to accomplish under the old
dispensation. But, in and for the judiciary, statesmanship should not prevail
over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law
and faithful adherence thereto are basic, fundamental and essential parts
of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of their
individual opinions and/or concurrences as appended hereto, the writer will
now make, with the concurrence of his colleagues, a resume or summary of
the votes cast by each of them.
Accordingly, the majority of the members of the Court believe that they
should express their views on the aforementioned issues as if the same
were being decided on the merits, and they have done so in their individual
opinion attached hereto. Hence, the resume of the votes cast and the tenor
of the resolution, in the last pages hereof, despite the fact that technically
the Court has not, as yet, formally given due course to the petitions herein.
It should be stated that by virtue of the various approaches and views

expressed during the deliberations, it was agreed to synthesize the basic
issues at bar in broad general terms in five questions for purposes of taking
the votes. It was further agreed of course that each member of the Court
would expound in his individual opinion and/or concurrence his own
approach to the stated issues and deal with them and state (or not) his
opinion thereon singly or jointly and with such priority, qualifications and
modifications as he may deem proper, as well as discuss thereon other
related issues which he may consider vital and relevant to the cases at bar.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ
of mandamus prayed for against Gil J. Puyat and Jose Roy, President and
President Pro Tempore respectively of the Senate, it being settled in our
jurisdiction, based upon the theory of separation of powers, that the
judiciary will not issue such writ to the head of a co-equal department, like
the aforementioned officers of the Senate.
The five questions thus agreed upon as reflecting the basic issues herein
involved are the following:
In all other respects and with regard to the other respondent in said case,
as well as in cases L-36142, L-36164, L-36236 and L-36283, my vote is that
the petitions therein should be given due course, there being more
than prima facie showing that the proposed Constitution has not been
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or

political and therefore non-justiciable, question?
50
2. Has the Constitution proposed by the 1971 Constitutional Convention

been ratified validly (with substantial, if not strict, compliance)
conformably to the applicable constitutional and statutory provisions?
plebiscite followed in past ratifications, I am constrained to hold that, in the

political sense, if not in the orthodox legal sense, the people may be
deemed to have cast their favorable votes in the belief that in doing so
they did the part required of them by Article XV, hence, it may be said that
in its political aspect, which is what counts most, after all, said Article has
been substantially complied with, and, in effect, the 1973 Constitution has
been constitutionally ratified."
3. Has the aforementioned proposed Constitution acquiesced in (with or

without valid ratification) by the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court
hold that under their view there has been in effect substantial compliance
with the constitutional requirements for valid ratification.
The results of the voting, premised on the individual views expressed by

the members of the Court in their respect opinions and/or concurrences,
are as follows:
3. On the third question of acquiescence by the Filipino people in the

aforementioned proposed Constitution, no majority vote has been reached
by the Court.
1. On the first issue involving the political-question doctrine Justices

Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6)
members of the Court, hold that the issue of the validity of Proclamation
No. 1102 presents a justiciable and non-political question. Justices
Makalintal and Castro did not vote squarely on this question, but, only
inferentially, in their discussion of the second question. Justice Barredo
qualified his vote, stating that "inasmuch as it is claimed there has been
approval by the people, the Court may inquire into the question of whether
or not there has actually been such an approval, and, in the affirmative,
the Court should keep hands-off out of respect to the people's will, but, in
negative, the Court may determine from both factual and legal angles
whether or not Article XV of the 1935 Constitution been complied with."
Justices Makasiar, Antonio, Esguerra, or three (3) members of the Court
hold that the issue is political and "beyond the ambit of judicial inquiry."
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that "the people have already accepted the 1973
Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold
that there can be no free expression, and there has even been no
expression, by the people qualified to vote all over the Philippines, of their
acceptance or repudiation of the proposed Constitution under Martial Law.
Justice Fernando states that "(I)f it is conceded that the doctrine stated in
some American decisions to the effect that independently of the validity of
the ratification, a new Constitution once accepted acquiesced in by the
people must be accorded recognition by the Court, I am not at this stage
prepared to state that such doctrine calls for application in view of the
shortness of time that has elapsed and the difficulty of ascertaining what is
the mind of the people in the absence of the freedom of debate that is a
concomitant feature of martial law." 88
2. On the second question of validity of the ratification, Justices Makalintal,

Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of
the Court also hold that the Constitution proposed by the 1971
Constitutional Convention was not validly ratified in accordance with Article
XV, section 1 of the 1935 Constitution, which provides only one way for
ratification, i.e., "in an election or plebiscite held in accordance with law
and participated in only by qualified and duly registered voters. 87
Three (3) members of the Court express their lack of knowledge and/or
competence to rule on the question. Justices Makalintal and Castro are
joined by Justice Teehankee in their statement that "Under a regime of
martial law, with the free expression of opinions through the usual media
vehicle restricted, (they) have no means of knowing, to the point of judicial
certainty, whether the people have accepted the Constitution." 89
Justice Barredo qualified his vote, stating that "(A)s to whether or not the
1973 Constitution has been validly ratified pursuant to Article XV, I still
maintain that in the light of traditional concepts regarding the meaning
and intent of said Article, the referendum in the Citizens' Assemblies,
specially in the manner the votes therein were cast, reported and
canvassed, falls short of the requirements thereof. In view, however, of the
fact that I have no means of refusing to recognize as a judge that factually
there was voting and that the majority of the votes were for considering as
approved the 1973 Constitution without the necessity of the usual form of
4. On the fourth question of relief, six (6) members of the Court, namely,
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted
to DISMISS the petition. Justice Makalintal and Castro so voted on the
strength of their view that "(T)he effectivity of the said Constitution, in the
final analysis, is the basic and ultimate question posed by these cases to
resolve which considerations other than judicial, an therefore beyond the
competence of this Court, 90 are relevant and unavoidable." 91
51
Four (4) members of the Court, namely, Justices Zaldivar, Fernando,

Teehankee and myself voted to deny respondents' motion to dismiss and to
give due course to the petitions.
ON THE CASE
5. On the fifth question of whether the new Constitution of 1973 is in force:
"(a) An examination of the decisions shows that the courts have almost
uniformly exercised the authority to determine the validity of the proposal,
submission, or ratification of constitutional amendments. It has
been judicially determined whether a proposed amendment received the
constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v.
Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl.
744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6
L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779;
Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re
Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.]
134 Fed. 423); whether a proposed amendment is a single amendment,
within the constitutional requirement that every amendment must be
separately submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert
v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis.
318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722;
Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo.
369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87
Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149);
whether the failure to enter the resolution of submission upon the
legislative journals invalidates the amendment (Koehler v. Hill, 60 Iowa,
543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11
Pac. 3; West v. State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22
Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St.
Rep. 895); whether the description of the amendment and the form of the
ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v.
Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149; Murphy Chair Co. v.
Attorney General [Mich.] 112 N.W. 127); whether the method of submission
sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164
Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a
notice relative to it is sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50
L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the
submission may be well by resolution as by a legislative act approved by
the executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568;
Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward Lesueur, 132 Mo.
410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732;
State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what election the
amendment be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
IN RE McCONAUGHY
Four (4) members of the Court, namely, Justices Barredo,

Makasiar, Antonio and Esguerra hold that it is in force by
virtue of the people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal,
Castro, Fernando and Teehankee cast no vote thereon on
the premise stated in their votes on the third question that
they could not state with judicial certainty whether the
people have accepted or not accepted the Constitution;
and
Two (2) members of the Court, namely, Justice Zaldivar and
myself voted that the Constitution proposed by the 1971
Constitutional Convention is not in force;
with the result that there are not enough votes to declare that the new
Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four
(4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and
Teehankee, all the aforementioned cases are hereby dismissed. This being
the vote of the majority, there is no further judicial obstacle to the new
Constitution being considered in force and effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
ANNEX A
PERTINENT PORTIONS
OF THE
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said:
"It is contended that the determination of the question whether an
amendment to the Constitution has been carried involves the exercise of
political, and not judicial, power. If this be so, it follows that the
promulgation of any purported amendment by the executive or any
executive department is final, and that the action cannot be questioned by
the judiciary; but, with reference to the conditions precedent to submitting
MINNESSOTA SUPREME COURT

DECISION
52
a proposed amendment to a vote of the people, it has been repeatedly

held, by courts of the highest respectability, that it is within the power of
the judiciary to inquire into the question, even in a collateral proceeding. ...
It is to be noted that under section 1 of article 20 of the Constitution of the
state no amendment can become a part of the Constitution until ratified by
a vote of the people. One prerequisite is equally as essential as the other.
The amendment must first receive the requisite majority in the Legislature,
and afterwards be adopted by the requisite vote. ... It is the fact of a
majority vote which makes the amendment a part of the Constitution."
been legally adopted. After approving the statement quoted from Collier v.
Frierson, supra, that 'we entertain no doubt that, to change the
Constitution in an other mode than by a convention, every requisite which
is demanded by the instrument itself must be observed, and the omission
of any one is fatal to the amendment,' the court held that, 'as substance of
right is grander and more potent than methods of form,' there had been
substantial compliance with the constitutional requirement that a proposed
amendment to the Constitution must be entered at length on the
legislative journal. It appears that the joint resolution making submission
simply provided that a proposition should be submitted to the electors at
the general election of 1880. It did not declare that the machinery of the
general election law should control, or that any particular officers or board
would receive, count, or canvass the votes cast. But the existing election
machinery was adequate, and the votes were received, counted, and
canvassed, and the result declared as fully as though it had been in terms
so ordered. These methods had been followed in the adoption of previous
amendments, and was held that, conceding the irregularity of the
proceedings the Legislature and the doubtful scope of the provisions for
the election, yet in view of the very uncertainty of such provision the past
legislative
history of
similar
propositions,
the universal
prior
acquiescence in the same forms of procedure and the popular
and unchallenged acceptance of the legal pendency before the people of
the question of the amendment for decision, and in view of the duty cast
upon the court taking judicial knowledge of anything affecting the
existence and validity of any law or portion of the Constitution, it must be
adjudged that the proposed amendment became part of the Constitution.
The effect was to hold that a provision of the Constitution requiring the
proposed amendment to be entered in full on the journals was directory,
and not mandatory. This liberal view was approved in State v. Winnett
(Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369,
Pac. 167, 102 Am. St. Rep. 34. But it has not been universally accepted.
"In considering the cases it is necessary to note whether in the particular

case the court was called upon to determine between rival governments,
or whether the Legislature, or some board or official, had legally performed
the duty imposed by the Constitution or statutes. In re State v. McBride, 4
Mo. 303, 29 Am. Dec. 636, it was held that the General Assembly, under
the power granted by the Constitution, could change the Constitution only
in the manner prescribed by it, and that it was the duty of the court to
determine whether all prerequisites had been complied with. In Collier v.
Frierson, 24 Ala. 100, it was held that a Constitution can be changes only
by the peoplein convention or in a mode described by the
Constitution itself, and that if the latter mode is adopted every requisite of
the Constitution must be observed. 'It has been said," says the court, "that
certain acts are to be done, certain requisitions are to be observed, before
a change can be effected; but to what purpose are these acts required, or
these requisitions enjoined, if the Legislature or any other department of
the government can dispense with them. To do so would be to violate the
instrument which they are sworn to support; and every principle of public
law and sound constitutional policy requires the court to pronounce
against every amendment which is shown not to have been made in
accordance with the rules prescribed by the fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may
form an original Constitution, or abrogate an old one and form a new one,
at any time, without any political restriction, except the Constitution of the
United States, but if they undertake to add an amendment, by the
authority of legislation to a Constitution already in existence, they can do it
only by the method pointed out by the Constitution to which the
amendment is added. The power to amend a Constitution by legislative
action does not confer the power to break it, any more than it confers the
power to legislate on any other subject contrary to its prohibitions.' So,
in State v. Timme, 54 Wis. 318, 11 N.W. 785, it was held
that no amendments can be made to the Constitution of the state without
a compliance with the provisions thereof, both in the passage of such
amendment by the Legislature and the manner of submitting it to the
people. The courts have not all agreed as to the strictness of compliance
which should be required.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in
commenting upon the Kansas case said: 'The reasoning by which the
learned court reached the conclusion it did is not based on any sound legal
principles, butcontrary to them. Neither the argument nor the conclusion
can command our assent or approval. The argument isillogical, and based
on premises which are without any sound foundation, and rests merely on
assumption.' See, also, the well-considered case of Kadderly v. Portland, 44
Or. 118, 74 Pac. 710, 75 Pac. 222. All these casesconcede the jurisdiction
of the court to determine whether, in submitting a proposed amendment to
the people, the Legislature legally observed the constitutional provisions
as to the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac.
424, 25 L.R.A. 312, the court, at the instance of a citizen and a taxpayer,
restrained the Secretary of State from taking steps to submit to the people
a proposed amendment to the Constitution agreed to by the Legislature on
the ground that the Legislature had not acted in conformity with the
Constitution and that the proposed amendment was of such a character
that it could not properly become a part of the Constitution. The Supreme
"In the Prohibition and Amendment Case, 24 Kan. 700, the

court determined judicially whether an amendment to the Constitution had
53
Court of Colorado, in People v. Sours, supra, refused to exercise this

authority.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an
amendment to the Constitution had been legally submitted and adopted by
the people was held to be judicial, and not political, in its nature. The
amendment under consideration changed the Constitution by providing for
an elective, instead of an appointive, judiciary. It was contented that the
amendments had been improperly submitted and adopted by a majority of
the qualified voters voting at election, as required by the Constitution. The
law did direct how the result of the election should be determined. The
Legislature by joint resolution recited that the election had been duly held
throughout the state, and, as it appeared from the returns made to the
Secretary of State, that 21,169 votes were cast in favor of, and 8,643 votes
against, the amendment, it resolved 'that said amendment be, and hereby
is, inserted into the Constitution of the state of Mississippi as a part of the
Constitution.' In fact, the amendment was not submitted in the
manner prescribed by the Constitution, and it did not receive a majority of
all the qualified voters voting at the election. It was argued that the rules
prescribed by the Constitution "are all for the guidance of the Legislature,
and from the very nature of the thing the Legislature must be
the exclusive judge of all questions to be measured or determined by these
rules. Whether the question be political, and certainly a legislative one, or
judicial, to be determined by the courts, this section of rules, not only of
procedure, but of final judgment as well, confides to the separate
magistracy of the legislative department full power to hear, consider, and
adjudge that question. The Legislature puts the question to
the qualified electors.
The qualified electors
answer
back
to
the
Legislature. "If it shall appear" to the Legislature that its question has been
answered in the affirmative, the amendment is inserted and made a part of
the Constitution. The Governor and the courts have no authority to speak
at any stage of the proceedings between the sovereign and the
Legislature, and when the matter is thus concluded it is closed, and the
judiciary is as powerless to interfere as the executive.' But it was held that
the question whether the proposition submitted to the voters constituted
one, or more than one, amendment, whether the submission was
according to the requirements of the Constitution, and whether the
proposition was in fact adopted, were all judicial, and not political,
questions. 'We do not,' said Chief Justice Whitfield, 'seek a jurisdiction not
imposed upon us by the Constitution. We could not, if we would, escape
the exercise of that jurisdiction which the Constitution has imposed upon
us. In the particular instance in which we are now acting, our duty to know
what the Constitution of the state is, and in accordance with our oaths to
support and maintain it in its integrity, imposed on us a most difficult and
embarrassing duty, one which we have not sought, but one which, like all
others, must be discharged."
"The entire question received elaborate consideration in Koehler v. Hill, 60

Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, which concededly
had been adopted by the people, had not, before its submission, been
entered in full upon the legislative journals, as required by the Constitution,
and it was held that this was a material variance in both form and
substance from the constitutional requirements, and that the amendment
did not, therefore, become a part of the Constitution. As to the claim that
the question was political, and not judicial, it was said that, while it is not
competent for courts to inquire into the validity of the Constitution and the
form of government under which they themselves exist, and from which
they derive their powers, yet, where the existing Constitution prescribes a
method for its own amendment, an amendment thereto, to be valid, must
be adopted in strict conformity to that method; and it is the duty of the
courts in a proper case, when an amendment does not relate to their own
power or functions, to inquire whether, in the adoption of the
amendment, the provisions of the existing Constitution have been
observed, and, if not, to declare the amendment invalid and of no force.
This case was followed in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. 76, the question whether a proposed
amendment to the Constitution had been legally adopted was treated as
a judicial question. By the Constitution a proposed amendment was
required to be approved by Legislatures before its submission to the
people. In this instance a bill was passed which contained 17 amendments.
The next Legislature rejected 9 and adopted 8 of the amendments, and
submitted them to the people.The majority of the people voted for their
adoption; but it was contended that the Constitution contemplated and
required that the same bill and the same amendments, without change,
should approved by both Legislatures, and that it did not follow because
the second Legislature adopted separately 8 out of 17 amendments
adopted by the first Legislature, it would have adopted the 17, or any of
them, if they had been voted upon the second in the form adopted by the
first body. The substance of the contention was that there had not been a
concurrence of the twoLegislatures on the same amendments, according to
the letter and spirit of the Constitution. The court held that the power of
the Legislature in submitting amendments could not be distinguished from
the powers of convention, and that, as the people had spoken and ratified
the amendments, they became a part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that
prior to 1876 a proposed amendment to Constitution could not be
submitted to the people at any other than a general election; but, as the
amendment under consideration had been submitted after the Constitution
been changed, it had been legally submitted and adopted.
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was
held that it was the duty of the judicial department of the government to
determine whether the legislative department or its officers had observed
the constitutional injunctions in attempting to amend the Constitution, and
to annul their acts if they had not done so. The case is an interesting and
54
well-considered one. The Constitution provided the manner in which

proposed amendments should be submitted to the people, but did not
provide a method for canvassing the votes. The Legislature having agreed
to certain proposed amendments, passed an act for submitting the same to
the people. This statute provided for the transmission to the Secretary of
State of certificate showing the result of the voting throughout the state,
and made it the duty of the Governor at the designated time summon four
or more Senators, who, with the Governor, should constitute a board of
state canvassers to canvass and estimate the votes for and against each
amendment. This board was to determine and declare which of the
proposed amendments had been adopted and to deliver a statement of the
results to the Secretary of State, and "any proposed amendment, which by
said certificate and determination of the board of canvassers shall appear
to have received in its favor the majority of all the votes cast in the state
for and against said proposed amendment, shall from the time of filing
such certificate be and become an amendment to and a part of the
Constitution of the state; and it shall be the duty of the Governor of the
state forthwith, after such a determination, to issue a proclamation
declaring which of the said proposed amendments have been adopted by
the people." This board was required to file a statement of the result of the
election, and the Governor to issue his proclamation declaring that the
amendment had been adopted and become a part of the Constitution. At
the instance of a taxpayer the Supreme Court allowed a writ of certiorari to
remove into the court for review the statement of the results of the
election made by the canvassing board, in order that it might be judicially
determined whether on the facts shown in that statement the board had
legally determined that the proposed amendment had been adopted. The
Supreme Court decided that the concurrence of the board of state
canvassers and the executive department of the government in their
respective official functions placed the subject-matter beyond the
cognizance of the judicial department of the state. The Court of Appeals,
after a full review of the authorities, reversed this decision, and held that
the questions were of a judicial nature, and properly determinable by the
court on their merits. Mr. Justice Dixon, after stating the facts, said: 'It thus
becomes manifest that there was present in the Supreme Court, and is now
pending in this court, every element tending to maintain jurisdiction over
the subject-matter, unless it be true, as insisted, that the judicial
department of the government has not the right to consider whether the
legislative department and its agencies have observed constitutional
injunctions in attempting to amend the Constitution, and to annul their
acts in case that they have not done so. That such a proposition is not true
seems to be indicated by the whole history of jurisprudence in this country.'
The court, after considering the case on the merits, held that the proper
conclusion had been drawn therefrom, and that the amendment in
question was legally submitted and adopted.
House of Representatives the power to determine whether an amendment

had been adopted, and that the question was political, and not judicial, the
court observed: "The argument has often been made in similar cases to the
courts, and it is found in many dissenting opinions; but, with probably
a few exceptions, it is not found in any prevailing opinion."
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that
the constitutional requirement of publication of a proposed constitutional
provision for three months prior to the election at which it is to be
submitted to the people is mandatory and that noncompliance therewith
renders the adoption of an amendment of no effect."
ANNEX B
MALACAANG
MANILA
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No. 86
dated December 31, 1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit to them for resolution
important national issues;
WHEREAS, one of the questions persistently mention refers to the
ratification of the Constitution proposed by the 1971 Constitutional
Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people
believe that the submission of the proposed Constitution to the Citizens
Assemblies or Barangays should taken as a plebiscite in itself in view of the
fact that freedom of debate has always been limited to the leadership in
political, economic and social fields, and that it is now necessary to bring
this down to the level of the people themselves through the Barangays or
Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers in me vested by the Constitution, do hereby order
that important national issues shall from time to time be referred to the
Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86-A dated January 5, 1973 an that the initial
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the
identical question which we have under consideration. In reference to the
contention that the Constitution intended to delegate to the Speaker of the
55
referendum shall include the matter of ratification of the Constitution

proposed by the 1971 Constitutional Convention.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA,

SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA ESTRADAKALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN
PONCE ENRILE, in his capacity as Secretary of National Defense;
General ROMEO ESPINO, in his capacity as Chief of Staff of the
Armed Forces of the Philippines; TANCIO E. CASTAEDA, in his
capacity as Secretary General Services; Senator GIL J. PUYAT, in his
capacity as President of the Senate; and Senator JOSE ROY, his
capacity, as President Pro Tempore of the of the
Senate, respondents.
The Secretary of the Department of Local Government and Community

Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord,
nineteen hundred and seventy-three.
By the President:
(SGD.) ALEJANDRO MELCHOR
Executive Secretary
G.R. No. L-36236 March 31, 1973

SUPREME COURT
Manila
EDDIE B. MONTECLARO, [personally and in his capacity as

President of the National Press Club of the Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC
INFORMATION, THE AUDITOR GENERAL, THE BUDGET
COMMISSIONER & THE NATIONAL TREASURER, respondents.
EN BANC
G.R. No. L-36283 March 31, 1973

G.R. No. L-36142 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO

ASODISEN, JR., and RAUL M. GONZALEZ,petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE
SECRETARY OF NATIONAL DEFENSE, THE HONORABLE BUDGET
COMMISSIONER, THE HONORABLE AUDITOR GENERAL, respondents.
JOSUE JAVELLANA, petitioner,

vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL
DEFENSE, THE SECRETARY OF JUSTICE AND THE SECRETARY OF
FINANCE, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
G.R. No. L-36164 March 31, 1973
Lorenzo M. Taada and Associates for petitioners Vidal Tan, et al.
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL

CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA AND LORENZO
M. TAADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE
SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORM, THE
SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE
BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL
COMMISSION ON REORGANIZATION, THE TREASURER OF THE
PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE
COMMISSIONER OF CIVIL SERVICE, respondents.
Taada, Salonga, Ordoez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo

for petitioners Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V.
Mendoza and Solicitor Reynato S. Puno for other respondents.
G.R. No. L-36165 March 31, 1973.

56
RESOLUTION
grounds, inter alia, that said Presidential Decree "has no

force and effect as law because the calling ... of such
plebiscite, the setting of guidelines for the conduct of the
same, the prescription of the ballots to be used and the
question to be answered by the voters, and the
appropriation of public funds for the purpose, are, by the
Constitution, lodged exclusively in Congress ...," and "there
is no proper submission to the people of said Proposed
Constitution set for January 15, 1973, there being no
freedom of speech, press and assembly, and there being
no sufficient time to inform the people of the contents
thereof."
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965
and
L-35979, decided on January 22, 1973, to which We will hereafter refer
collectively as the plebiscite cases.
Background of the Plebiscite Cases.
Substantially identical actions were filed, on December 8,

1972, by Pablo C. Sanidad against the Commission on
Elections (Case G.R. No. L- 35929) on December 11, 1972,
by Gerardo Roxas, et al., against the Commission on
Elections, the Director of Printing, the National Treasurer
and the Auditor General (Case G.R. L-35940), by Eddie B.
Monteclaro against the Commission on Elections and the
Treasurer of the Philippines (Case G.R. No. L-35941), and by
Sedfrey Ordoez, et al. against the National Treasurer and
the Commission on Elections (Case G.R. No. L-35942); on
December 12, 1972, by Vidal Tan, et al., against the
Commission on Elections, the Treasurer of the Philippines,
the Auditor General and the Director of Printing (Case G.R.
No. L-35948) and by Jose W. Diokno and Benigno S. Aquino
against the Commission on Elections (Case G.R. No. L35953); on December 14, 1972, by Jacinto Jimenez against
the Commission on Elections, the Auditor General, the
Treasurer of the Philippines and the Director of the Bureau
of Printing (Case G.R. No. L-35961), and by Raul M.
Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor
General (Case G.R. No. L-35965); and on December 16,
1972, by Ernesto C. Hidalgo against the Commission on
Elections, the Secretary of Education, the National
Treasurer and the Auditor General (Case G.R. No. L-35979).
The factual setting thereof is set forth in the decision therein rendered,
from which We quote:
On March 16, 1967, Congress of the Philippines passed
Resolution No. 2, which was amended by Resolution No. 4
of said body, adopted on June 17, 1969, calling a
Convention to propose amendments to the Constitution of
the Philippines. Said Resolution No. 2, as amended, was
implemented by Republic Act No. 6132, approved on
August 24, 1970, pursuant to the provisions of which the
election of delegates to said Convention was held on
November 10, 1970, and the 1971 Constitutional
Convention began to perform its functions on June 1, 1971.
While the Convention was in session on September 21,
1972, the President issued Proclamation No. 1081 placing
the entire Philippines under Martial Law. On November 29,
1972, the Convention approved its Proposed Constitution of
the Republic of the Philippines. The next day, November
30, 1972, the President of the Philippines issued
Presidential Decree No. 73, "submitting to the Filipino
people for ratification or rejection the Constitution of the
Republic of the Philippines proposed by the 1971
Constitutional Convention, and appropriating funds
therefor," as well as setting the plebiscite for said
ratification or rejection of the Proposed Constitution on
January 15, 1973.
In all these cases, except the last (G.R. No. L-35979), the
respondents were required to file their answers "not later
than 12:00 (o'clock) noon of Saturday, December 16,
1972." Said cases were, also, set for hearing and partly
heard on Monday, December 18, 1972, at 9:30 a.m. The
hearing was continued on December 19, 1972. By
agreement of the parties, the aforementioned last case
G.R. No. L-35979 was, also, heard, jointly with the
others, on December 19, 1972. At the conclusion of the
hearing, on that date, the parties in all of the
Soon after, or on December 7, 1972, Charito Planas filed,

with this Court, Case G.R. No. L-35925, against the
Commission on Elections, the Treasurer of the Philippines
and the Auditor General, to enjoin said "respondents or
their agents from implementing Presidential Decree No. 73,
in any manner, until further orders of the Court," upon the
57
aforementioned cases were given a short period of time

within which "to submit their notes on the points they
desire to stress." Said notes were filed on different dates,
between December 21, 1972, and January 4, 1973.
"7. That thereafter it was later announced that "the

[1] The New Society;

open debate on the proposed Constitution."
[2] Reforms instituted under Martial Law;

[3] The holding of a plebiscite on the
tentative new dates given following the
and March 5);
[4] The opening of the regular session

known or announced officially. Then, again, Congress was,
"8. That it was later reported that the following are to be

the forms of the questions to be asked to the Citizens
Assemblies:
[1] Do you approve of the New Society?
[2] Do you approve of the reform measures
under martial law?
[3] Do you think that Congress should meet
again in regular session?
[4] How soon would you like the plebiscite
on the new Constitution to be held?
[Bulletin Today, January 5, 1973].
"9. That the voting by the so-called Citizens Assemblies
was announced to take place during the period from
January 10 to January 15, 1973;
"In the afternoon of January 12, 1973, the petitioners in

Case
G.R.
No.
L-35948 filed an "urgent motion," praying that said case be
decided "as soon as possible, preferably not later than
January 15, 1973." It was alleged in said motion, inter alia:
"10. That on January 10, 1973, it was reported that on

more question would be added to the four (4) question
previously announced, and that the forms of the question
"6. That the President subsequently announced the

issuance of Presidential Decree No. 86 organizing the socalled Citizens Assemblies, to be consulted on certain
public questions [Bulletin Today, January 1, 1973];

58
[2] Do you like the reforms under martial

law?
"13. That attached to page 1 of Annex "A" is another page,

[3] Do you like Congress again to hold

sessions?
COMMENTS ON
QUESTION No. 1
[4] Do you like the plebiscite to be held

later?
In order to broaden the

base
of
citizens'
participation
in
government.
[5] Do you like the way President Marcos

running
the
affairs
of
the
government? [Bulletin Today, January 10,
QUESTION No. 2
"11. That on January 11, 1973, it was reported that six (6)

[1] Do you approve of the citizens

interests?
[2] Do you
Constitution?
approve
of
the
QUESTION No. 3
new

New Constitution.
[3] Do you want a plebiscite to be called to

ratify the new Constitution?

New
Constitution,
then
the
new
[4] Do you want the elections to be held in

provisions of the 1935 Constitution?
QUESTION No. 4
[5] If the elections would not be held, when

do you want the next elections to be
called?

[6] Do you want martial law to continue?

[Bulletin
Today,
January
11,
1973;
emphasis supplied]
QUESTION No. 5
normalcy to return.
"12. That according to reports, the returns with respect to

59
QUESTION No. 6
Do you still
want
a
plebiscite
to be called
to ratify the
new
Constitutio
n?"

Marcos
to
declare
a
revolutionary
Assembly."

pending;
"Attention is respectfully invited to the comments on

"Question No. 3," which reads:
"16. That petitioners have reason to fear, and therefore

accompli which
has
been
attained
in
a
highly
QUESTION No. 3
Constitution.
"17. That the fait accompli would consist in the supposed

Constitution;

New
Constitution,
then
the
new
"18. That, if such event would happen, then the case

before this Honorable Court could, to all intents and
purposes, become moot because, petitioners fear, and they
therefore allege, that on the basis of such supposed
expression of the will of the people through the Citizens
Assemblies, it would be announced that the proposed
Constitution, with all its defects, both congenital and
otherwise, has been ratified;

"19. That, in such a situation the Philippines will be facing a


"20. That the crisis mentioned above can only be avoided if

"21. That with the withdrawal by the President of the

limited freedom of discussion on the proposed Constitution
which was given to the people pursuant to Sec. 3 of
Presidential Decree No. 73, the opposition of respondents

60
to petitioners' prayer at the plebiscite be prohibited has

now collapsed and that a free plebiscite can no longer be
held."
Jose Roo; the Department of Agrarian Reforms and its

At about the same time, a similar prayer was made in a

"manifestation" filed by the petitioners in L-35949,
"Gerardo Roxas, et al. v. Commission on Elections, et al.,"
and L-35942, "Sedfrey A. Ordoez, et al. v. The National
Treasurer, et al."
The next day, January 13, 1973, which was a Saturday, the
Court issued a resolution requiring the respondents in said
three (3) cases to comment on said "urgent motion" and
"manifestation," "not later than Tuesday noon, January 16,
1973." Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 riled a
"supplemental motion for issuance of restraining order and
inclusion of additional respondents," praying
"4. That the proceedings of the so-called Citizens'

because:
[a] The elections contemplated in the
so called Citizens' Assemblies were
Code;
"... that a restraining order be issued

enjoining and restraining respondent
Commission on Elections, as well as the
Department of Local Governments and its
head, Secretary Jose Roo; the Department
of Agrarian Reforms and its head, Secretary
Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman,
Guillermo
de
Vega;
their
deputies,
subordinates and substitutes, and all other
officials and persons who may be assigned
such task, from collecting, certifying, and
announcing and reporting to the President
or other officials concerned, the so-called
Citizens' Assemblies referendum results
allegedly obtained when they were
supposed to have met during the period
comprised between January 10 and January
15, 1973, on the two questions quoted in
paragraph 1 of this Supplemental Urgent
Motion."
[b] Elections or plebiscites for the

[c] The Election Code makes ample
plebiscites
for
the
ratification
of
proceedings of the so called Citizens'
Assemblies;

"3. That petitioners are now before this Honorable Court in
61
[d] It is seriously to be doubted that, for

of the so called Citizens' Assemblies have

carry out the said Presidential Decree No. 86. and the
of this petition;
[b] In their petition, petitioners sought the
30, 1972"; and finally,

barrio
captains
and
last Monday [January 8,
of the Citizens Assemblies
and
the
topics
for
discussion." [Bulletin Today,
January 10, 1973]
[c] Petitioners prayed for such other relief

which may be just and equitable. [p. 39,
Petition].
"It should be recalled that the Citizens' Assemblies were

ordered formed only at the beginning of the year [Daily
Express, January 1, 1973], and considering the lack of
organization, it is too much to believe that such assemblies
could be organized at such a short notice.

"5. That for lack of material time, the appropriate amended

(a) Direct and immediate supervision and

provisions of this Code ..." [Election Code of
1971, Sec. 3].
[a] The herein petitioners have prayed in

instruction.
"6. That unless the petition at bar is decided immediately

enjoined
from
collecting,
certifying,
reporting
or

62

the Filipino people, the cause of freedom an democracy,
"BY THE PRESIDENT OF THE PHILIPPINES

"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE
[a] After the result of the supposed voting

on the questions mentioned in paragraph 1
hereof shall have been announced, a
conflict will arise between those who
maintain that the 1935 Constitution is still
in force, on the one hand, and those who
will maintain that it has been superseded
by the proposed Constitution, on the other,
"WHEREAS, the Constitution proposed by the nineteen

"WHEREAS, Citizens Assemblies were created in barrios, in
[b] Even the jurisdiction of this Court will be

subject to serious attack because the
advocates of the theory that the proposed
Constitution has been ratified by reason of
the announcement of the results of the
Assemblies will argue that, General Order
No. 3, which shall also be deemed ratified
pursuant to the Transitory Provisions of the
proposed
Constitution,
has
placed
Presidential Decree Nos. 73 and 86 beyond
the reach and jurisdiction of this Honorable
Court."
"WHEREAS, the said Citizens Assemblies were established

issues;
"WHEREAS, responding to the clamor of the people and
New Constitution? Do you still want a plebiscite to be called
On the same date January 15, 1973 the Court passed

a resolution requiring the respondents in said case G.R. No.
L-35948 to file "file an answer to the said motion not later
than 4 P.M., Tuesday, January 16, 1973," and setting the
motion for hearing "on January 17, 1973, at 9:30 a.m."
While the case was being heard, on the date last
mentioned, at noontime, the Secretary of Justice called on
the writer of this opinion and said that, upon instructions of
the President, he (the Secretary of Justice) was delivering
to him (the writer) a copy of Proclamation No. 1102, which
had just been signed by the President. Thereupon, the
writer returned to the Session Hall and announced to the
Court, the parties in G.R. No. L-35948 inasmuch as the
hearing in connection therewith was still going on and
the public there present that the President had, according
to information conveyed by the Secretary of Justice, signed
said Proclamation No. 1102, earlier that morning.
Thereupon, the writer read Proclamation No. 1102 which is
of the following tenor:
"WHEREAS, fourteen million nine hundred seventy-six

63
"WHEREAS, since the referendum results show that more

Immediately after the hearing held on January 17, 1973, or

since the afternoon of that date, the Members of the Court
have been deliberating on the aforementioned cases and,
after extensive discussions on the merits thereof, have
deemed it best that each Member write his own views
thereon and that thereafter the Chief Justice should state
the result or the votes thus cast on the points in issue.
Hence, the individual views of my brethren in the Court are
set forth in the opinions attached hereto, except that,
instead of writing their separate opinions, some Members
have preferred to merely concur in the opinion of one of
our colleagues.
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of

ratified by an overwhelming majority of all of the votes cast
effect.
Then the writer of said decision expressed his own opinion on the issues
involved therein, after which he recapitulated the views of the Members of
the Court, as follows:
"IN WITNESS WHEREOF, I have hereunto set my hand and

affixed.
1. There is unanimity on the justiciable nature of the issue

on the legality of Presidential Decree No. 73.
2. On the validity of the decree itself, Justices Makalintal,
Castro, Fernando, Teehankee, Esguerra and myself, or six
(6) Members of the Court, are of the opinion that the issue
has become moot and academic, whereas Justices Barredo,
Makasiar and Antonio voted to uphold the validity of said
Decree.
"Done in the City of Manila, this 17th day of January, in the

"By the President:
"ALEJANDRO
"Executive Secretary"
MELCHOR
3. On the authority of the 1971 Constitutional Convention

to pass the proposed Constitution or to incorporate therein
the provisions contested by the petitioners in L-35948,
Justices Makalintal, Castro, Teehankee and Esguerra opine
that the issue has become moot and academic. Justices
Fernando, Barredo, Makasiar, Antonio and myself have
voted to uphold the authority of the Convention.
Such is the background of the cases submitted

determination. After admitting some of the allegations
made in the petition in L-35948 and denying the other
allegations thereof, respondents therein alleged in their
answer thereto, by way affirmative defenses: 1) that the
"questions raised" in said petition "are political in
character"; 2) that "the Constitutional Convention acted
freely and had plenary authority to propose not only
amendments but a Constitution which would supersede the
present Constitution"; 3) that "the President's call for a
plebiscite and the appropriation of funds for this purpose
are valid"; 4) that "there is not an improper submission"
and "there can be a plebiscite under Martial Law"; and 5)
that the "argument that the Proposed Constitution is vague
and incomplete, makes an unconstitutional delegation of
power, includes a referendum on the proclamation of
Martial Law and purports to exercise judicial power" is "not
relevant and ... without merit." Identical defenses were set
up in the other cases under consideration.
4. Justice Fernando, likewise, expressed the view that the

1971 Constitutional Convention had authority to continue
in the performance of its functions despite the
proclamation of Martial Law. In effect, Justices Barredo,
Makasiar and Antonio hold the same view.
5. On the question whether the proclamation of Martial Law
affected the proper submission of the proposed
Constitution to a plebiscite, insofar as the freedom
essential therefor is concerned, Justice Fernando is of the
opinion that there is a repugnancy between the election
contemplated under Art. XV of the 1935 Constitution and
the existence of Martial Law, and would, therefore, grant
64
the petitions were they not moot and academic. Justices

Barredo, Antonio and Esguerra are of the opinion that issue
involves questions of fact which cannot be predetermined,
and that Martial Law per se does not necessarily preclude
the factual possibility of adequate freedom, for the
purposes contemplated.
7. On the question whether or not these cases should be

dismissed, Justices Makalintal, Castro, Barredo, Makasiar,
Antonio and Esguerra voted in the affirmative, for the
reasons set forth in their respective opinions. Justices
Fernando, Teehankee, and the writer similarly voted,
except as regards Case No. L-35948 as to which they voted
to grant to the petitioners therein a reasonable period of
time within which to file appropriate pleadings should they
wish to contest the legality of Presidential Proclamation No.
1102. Justice Zaldivar favors the granting of said period to
the petitioners in said Case No. L-35948 for the
aforementioned purpose, but he believes, in effect, that the
Court should go farther and decide on the merits everyone
of the cases under consideration.
6. On Presidential Proclamation No. 1102, the following

views were expressed:
a. Justices Makalintal, Castro, Fernando,
Teehankee, Makasiar, Esguerra and myself
are of the opinion that the question of
validity of said Proclamation has not been
properly raised before the Court, which,
accordingly, should not pass upon such
question.
Accordingly, the Court acting in conformity with the position taken by six
(6) of its members, 1 with three (3) members dissenting, 2 with respect to
G.R. No. L-35948, only and another member 3 dissenting, as regards all of
the cases dismissed the same, without special pronouncement as to costs.
b. Justice Barredo holds that the issue on

the constitutionality of Proclamation No.
1102 has been submitted to and should be
determined by the Court, and that the
"purported ratification of the Proposed
Constitution ... based on the referendum
among Citizens' Assemblies falls short of
being in strict conformity with the
requirements of Article XV of the 1935
Constitution," but that such unfortunate
drawback notwithstanding, "considering all
other related relevant circumstances, ...
the new Constitution is legally recognizable
and should be recognized as legitimately in
force."
The Present Cases

Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L36142 against the Executive Secretary and the Secretaries of National
Defense, Justice and Finance, to restrain said respondents "and their
subordinates or agents from implementing any of the provisions of the
propose Constitution not found in the present Constitution" referring to
that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino
citizen, and a qualified and registered voter" and as "a class suit, for
himself, and in behalf of all citizens and voters similarly situated," was
amended on or about January 24, 1973. After reciting in substance the
facts set forth in the decision in the plebiscite cases, Javellana alleged that
the President had announced "the immediate implementation of the New
Constitution, thru his Cabinet, respondents including," and that the latter
"are acting without, or in excess of jurisdiction in implementing the said
proposed Constitution" upon the ground: "that the President, as
Commander-in-Chief of the Armed Forces of the Philippines, is without
authority to create the Citizens Assemblies"; that the same "are without
power to approve the proposed Constitution ..."; "that the President is
without power to proclaim the ratification by the Filipino people of the
proposed Constitution"; and "that the election held to ratify the proposed
c. Justice Zaldivar maintains unqualifiedly

that the Proposed Constitution has not
been ratified in accordance with Article XV
of the 1935 Constitution, and that,
accordingly, it has no force and effect
whatsoever.
d. Justice Antonio feels "that the Court is
not competent to act" on the issue whether
the Proposed Constitution has been ratified
by the people or not, "in the absence of
any judicially discoverable and manageable
standards," since the issue "poses a
question of fact.
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio
Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de
Peralta and Lorenzo M. Taada, against the Executive Secretary, the
Secretaries of Finance, Justice, Land Reform, and National Defense, the
Auditor General, the Budget Commissioner, the Chairman of the
65
Presidential Commission on Reorganization, the Treasurer of the

Philippines, the Commission on Elections and the Commissioner of Civil
Service 4 on February 3, 1973, by Eddie Monteclaro, personally and as
President of the National Press Club of the Philippines, against the
Executive Secretary, the Secretary of Public Information, the Auditor
General, the Budget Commissioner and the National Treasurer 5 and on
February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo
Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive Secretary, the
Secretary of National Defense, the Budget Commissioner and the Auditor
General.
1973 to January 15, 1973, as stated in and by virtue of Proclamation No.

1102 signed and issued by the President of the Philippines"; that "the
alleged creation of the Citizens' Assemblies as instrumentalities for the
ratification of the Constitution of the Republic of the Philippines" is
inherently illegal and palpably unconstitutional; that respondents Senate
President and Senate President Pro Tempore "have unlawfully refrained and
continue to refrain from and/or unlawfully neglected and continue to
neglect the performance of their duties and functions as such officers
under the law and the Rules of the Senate" quoted in the petition; that
because of events supervening the institution of the plebiscite cases, to
which reference has been made in the preceding pages, the Supreme
Court dismissed said cases on January 22, 1973, by a majority vote, upon
the ground that the petitions therein had become moot and academic; that
the alleged ratification of the 1972 (1973) Constitution "is illegal,
unconstitutional and void and ... can not have superseded and revoked the
1935 Constitution," for the reasons specified in the petition as amended;
that, by acting as they did, the respondents and their "agents,
representatives and subordinates ...have excluded the petitioners from an
office to which" they "are lawfully entitled"; that "respondents Gil J. Puyat
and Jose Roy have unlawfully refrained from convening the Senate for its
8th session, assuming general jurisdiction over the Session Hall and the
premises of the Senate and ... continue such inaction up to this time and ...
a writ of mandamus is warranted in order to compel them to comply with
the duties and functions specifically enjoined by law"; and that "against the
above mentioned unlawful acts of the respondents, the petitioners have no
appeal nor other speedy and adequate remedy in the ordinary course of
law except by invoking the equitable remedies of mandamus and
prohibition with the provisional remedy of preliminary mandatory
injunction."
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R.

Salonga, Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw,
the first as "duly elected Senator and Minority Floor Leader of the Senate,"
and others as "duly elected members" thereof, filed Case G.R. No. L-36165,
against the Executive Secretary, the Secretary National Defense, the Chief
of Staff of the Armed Forces of the Philippines, the Secretary of General
Services, the President and the President Pro Tempore of the Senate. In
their petition as amended on January 26, 1973 petitioners Gerardo
Roxas, et al. allege, inter alia, that the term of office of three of the
aforementioned petitioners 8 would expire on December 31, 1975, and that
of the others 9 on December 31, 1977; that pursuant to our 1935
Constitution, "which is still in force Congress of the Philippines "must
convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M.,
which is regular customary hour of its opening session"; that "on said day,
from 10:00 A.M. up to the afternoon," said petitioner "along with their other
colleagues, were unlawfully prevented from using the Senate Session Hall,
the same having been closed by the authorities in physical possession and
control the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the said
day, the premises of the entire Legislative Building were ordered cleared by
the same authorities, and no one was allowed to enter and have access to
said premises"; that "(r)espondent Senate President Gil J. Puyat and, in his
absence, respondent President Pro Tempore Jose Roy we asked by
petitioning Senators to perform their duties under the law and the Rules of
the Senate, but unlawfully refrained and continue to refrain from doing so";
that the petitioners ready and willing to perform their duties as duly
elected members of the Senate of the Philippines," but respondent
Secretary of National Defense, Executive Secretary and Chief of Staff,
"through their agents and representatives, are preventing petitioners from
performing their duties as duly elected Senators of the Philippines"; that
"the Senate premise in the Congress of the Philippines Building ... are
occupied by and are under the physical control of the elements military
organizations under the direction of said respondents"; that, as per "official
reports, the Department of General Services ... is now the civilian agency in
custody of the premises of the Legislative Building"; that respondents
"have unlawfully excluded and prevented, and continue to so exclude and
prevent" the petitioners "from the performance of their sworn duties,
invoking the alleged approval of the 1972 (1973) Constitution of the
Philippines by action of the so-called Citizens' Assemblies on January 10,
Premised upon the foregoing allegations, said petitioners prayed that,

"pending hearing on the merits, a writ of preliminary mandatory injunction
be issued ordering respondents Executive Secretary, the Secretary of
National Defense, the Chief of Staff of the Armed Forces of the Philippines,
and the ... Secretary of General Service, as well as all their agents,
representatives and subordinates to vacate the premises of the Senate of
the Philippines and to deliver physical possession of the same to the
President of the Senate or his authorized representative"; and that hearing,
judgment be rendered declaring null and Proclamation No. 1102 ... and any
order, decree, proclamation having the same import and objective, issuing
writs of prohibition and mandamus, as prayed for against above-mentioned
respondents, and making the writ injunction permanent; and that a writ
of mandamus be issued against the respondents Gil J. Puyat and Jose Roy
directing them to comply with their duties and functions as President and
President Pro Tempore, respectively, of the Senate of Philippines, as
provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or amended
petitions, respondents filed, with the leave Court first had and obtained, a
66
consolidated comment on said petitions and/or amended petitions, alleging

that the same ought to have been dismissed outright; controverting
petitioners' allegations concerning the alleged lack impairment of the
freedom of the 1971 Constitution Convention to approve the proposed
Constitution, its alleged lack of authority to incorporate certain contested
provisions thereof, the alleged lack of authority of the President to create
and establish Citizens' Assemblies "for the purpose submitting to them the
matter of ratification of the new Constitution," the alleged "improper or
inadequate submiss of the proposed constitution," the "procedure for
ratification adopted ... through the Citizens Assemblies"; a maintaining
that: 1) "(t)he Court is without jurisdiction to act on these petitions"; 2) the
questions raised therein are "political in character and therefore
nonjusticiable"; 3) "there substantial compliance with Article XV of the 1
Constitution"; 4) "(t)he Constitution was properly submitted the people in a
free, orderly and honest election; 5) "Proclamation No. 1102, certifying the
results of the election, is conclusive upon the courts"; and 6) "(t)he
amending process outlined in Article XV of the 1935 Constitution is not
exclusive of other modes of amendment."
notes shall include his reply to the notes already filed by the petitioners in
G.R. Nos. L-36164 a L-36165. Counsel for the petitioners, likewise, moved
and were granted an extension of time, to expire on March 10, 1973, within
which to file, as they did, their notes in reply to those submitted by the
Solicitor General on March 3, 1973. On March 21, 1973, petitioners in L36165 filed a "Manifestation a Supplemental Rejoinder," whereas the Office
of the Solicitor General submitted in all these cases a "Rejoinder
Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed that
each would write his own opinion and serve a copy thereof on his
colleagues, and this they did. Subsequently, the Court discussed said
opinions and votes were cast thereon. Such individual opinions are
appended hereto.
Accordingly, the writer will first express his person opinion on the issues
before the Court. After the exposition his aforesaid opinion, the writer will
make, concurrently with his colleagues in the Court, a resume of summary
of the votes cast by them in these cases.
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their
separate comment therein, alleging that "(t)he subject matter" of said case
"is a highly political question which, under the circumstances, this ...Court
would not be in a position to act upon judicially," and that, in view of the
opinions expressed by three members of this Court in its decision in the
plebiscite cases, in effect upholding the validity of Proclamation No. 1102,
"further proceedings in this case may only be an academic exercise in
futility."
Writer's Personal Opinion

I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat and
Jose Roy in G.R. No. L-36165, and, also, by the Solicitor General, is
predicated upon the fact that, in Our decision in the plebiscite cases, Mr.
Justice Barredo had expressed the view that the 1935 Constitution had "pro
tanto passed into history" and "been legitimately supplanted by the
Constitution now in force by virtue of Proclamation No. 1102 ..."; that Mr.
Justice Antonio did not feel "that this Court competent to act" in said cases
"in the absence of any judicially discoverable and manageable standards"
and because "the access to relevant information is insufficient to assure
the correct determination of the issue," apart from the circumstance that
"the new constitution has been promulgated and great interests have
already arisen under it" and that the political organ of the Government has
recognized its provisions; whereas, Mr. Justice Esguerra had postulated that
"(w)ithout any competent evidence ... about the circumstances attending
the holding" of the "referendum or plebiscite" thru the Citizens'
Assemblies, he "cannot say that it was not lawfully held" and that,
accordingly, he assumed "that what the proclamation (No. 1102) says on
its face is true and until overcome by satisfactory evidence" he could not
"subscribe to the claim that such plebiscite was not held accordingly"; and
that he accepted "as a fait accompli that the Constitution adopted (by the
1971 Constitutional Convention) on November 30, 1972, has been duly
ratified.
On February 5, 1973, the Court issued a resolution requiring respondents in

L-36236 to comment on the petition therein not later than Saturday,
February 10, 1973, and setting the case for hearing on February 12, 1973,
at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to
consider the comments of the respondents in cases G.R. Nos. L-36142, L36164, and L-36165, as motions to dismiss the petitions therein, and to set
said cases for hearing on the same date and time as L-36236. On that
date, the parties in G.R. No. L-36283 10 agreed that the same be, likewise,
heard, as it was, in fact, heard jointly with the aforementioned cases G.R.
Nos. L-36142, L-36164, L-36165 and L-36236. The hearing, which began on
February 12, 1973, shortly after 9:30 a.m., was continued not only that
afternoon, but, also, on February 13, 14, 15 and 16, morning and
afternoon, after which the parties were granted up to February 24, 1973,
noon, within which to submit their notes of oral arguments and additional
arguments, as well as the documents required of them or whose
presentation was reserved by them. The same resolution granted the
parties until March 1, 1973, to reply to the notes filed by their respective
opponents. Counsel for the petitioners in G.R. Nos. L-36164 and L-36165
filed their aforementioned notes on February 24, 1973, on which date the
Solicitor General sought an extension of time up to March 3, 1973, within
which to file his notes, which was granted, with the understanding that said
67
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that,
under these circumstances, "it seems remote or improbable that the
necessary eight (8) votes under the 1935 Constitution, and much less the
ten (10) votes required by the 1972 (1973) Constitution, can be obtained
for the relief sought in the Amended Petition" in G.R. No.
L-36165.
The distinction is not without reasonable foundation. The two thirds vote
(eight [8] votes) requirement, indeed, was made to apply only to treaty
and law, because, in these cases, the participation of the two other
departments of the government the Executive and the Legislative is
present, which circumstance is absent in the case of rules, regulations and
executive orders. Indeed, a law (statute) passed by Congress is subject to
the approval or veto of the President, whose disapproval cannot be
overridden except by the vote of two-thirds (2/3) of all members of each
House of Congress. 12 A treaty is entered into by the President with the
concurrence of the Senate, 13 which is not required in the case of rules,
regulations or executive orders which are exclusive acts of the President.
Hence, to nullify the same, a lesser number of votes is necessary in the
Supreme Court than that required to invalidate a law or treaty.
I am unable to share this view. To begin with, Mr. Justice Barredo

announced publicly, in open court, during the hearing of these cases, that
he was and is willing to be convinced that his aforementioned opinion in
the plebiscite cases should be reconsidered and changed. In effect, he thus
declared that he had an open mind in connection with the cases at bar,
and that in deciding the same he would not necessarily adhere to said
opinion if the petitioners herein succeeded in convincing him that their
view should be sustained.
Although the foregoing refers to rules, regulations and executive orders

issued by the President, the dictum applies with equal force to executive
proclamation, like said Proclamation No. 1102, inasmuch as the authority
to issue the same is governed by section 63 of the Revised Administrative
Code, which provides:
Secondly, counsel for the aforesaid respondents had apparently assumed

that, under the 1935 Constitution, eight (8) votes are necessary to declare
invalid the contested Proclamation No. 1102. I do not believe that this
assumption is borne out by any provision of said Constitution. Section 10 of
Article VIII thereof reads:
Administrative acts and commands of the (GovernorGeneral) President of the Philippines touching the
organization or mode of operation of the Government or
rearranging or readjusting any of the districts, divisions,
parts or ports of the (Philippine Islands) Philippines and all
acts and commands governing the general performance of
duties by public employees or disposing of issues of
general concern shall be made effective in executive
orders.
All cases involving the constitutionality of a treaty or law

shall be heard and decided by the Supreme Court in banc,
and no treaty or law may be declared unconstitutional
without the concurrence of two thirds of all the members of
the Court.
Pursuant to this section, the concurrence of two-thirds of all the Members
of the Supreme Court is required only to declare "treaty or law"
unconstitutional. Construing said provision, in a resolution dated
September 16, 1949, then Chief Justice Moran, voicing the unanimous view
of the Members of this Court, postulated:
Executive orders fixing the dates when specific laws,

resolutions, or orders are to have or cease to (have) effect
and any information concerning matters of public
moment determined by law, resolution, or executive
orders,
may
be
promulgated
in
an
executive
proclamation, with all the force of an executive order. 14
... There is nothing either in the Constitution or in the

Judiciary Act requiring the vote of eight Justices to nullify a
rule or regulation or an executive order issued by the
President. It is very significant that in the previous drafts of
section 10, Article VIII of the Constitution, "executive order"
and "regulation" were included among those that required
for their nullification the vote of two-thirds of all the
members of the Court. But "executive order" and
"regulation" were later deleted from the final draft (Aruego,
The Framing of the Philippine Constitution, Vol. I, pp. 495,
496), and thus a mere majority of six members of this
Court is enough to nullify them. 11
In fact, while executive order embody administrative acts or commands of

the President, executive proclamations are mainly informative and
declaratory in character, and so does counsel for respondents Gil J. Puyat
and
Jose
Roy
maintain
in
G.R.
No.
L-36165. 15 As consequence, an executive proclamation has no more than
"the force of an executive order," so that, for the Supreme Court to declare
such proclamation unconstitutional, under the 1935 Constitution, the same
number of votes needed to invalidate an executive order, rule or regulation
namely, six (6) votes would suffice.
68
As regards the applicability of the provisions of the proposed new

Constitution, approved by the 1971 Constitutional Convention, in the
determination of the question whether or not it is now in force, it is obvious
that such question depends upon whether or not the said new Constitution
has been ratified in accordance with the requirements of the 1935
Constitution, upon the authority of which said Constitutional Convention
was called and approved the proposed Constitution. It is well settled that
the matter of ratification of an amendment to the Constitution should be
settled by applying the provisions of the Constitution in force at the time of
the alleged ratification, or the old Constitution. 16
Constitutional Convention, not only because of the circumstances under

which said Assemblies had been created and held, but, also, because
persons disqualified to vote under Article V of the Constitution were
allowed to participate therein, because the provisions of our Election Code
were not observed in said Assemblies, because the same were not held
under the supervision of the Commission on Elections, in violation of
section 2 of Article X of the 1935 Constitution, and because the existence
of Martial Law and General Order No. 20, withdrawing or suspending the
limited freedom to discuss the merits and demerits of said proposed
Constitution, impaired the people's freedom in voting thereon,
particularly a viva voce, as it was done in many instances, as well as their
ability to have a reasonable knowledge of the contents of the document on
which they were allegedly called upon to express their views.
II
Does the issue on the validity of Proclamation No. 1102 partake of the
nature of a political, and, hence, non-justiciable question?
Referring now more specifically to the issue on whether the new

Constitution proposed by the 1971 Constitutional Convention has been
ratified in accordance with the provisions of Article XV of the 1935
Constitution is a political question or not, I do not hesitate to state that the
answer must be in the negative. Indeed, such is the position taken by this
Court, 17 in an endless line of decisions, too long to leave any room for
possible doubt that said issue is inherently and essentially justiciable.
Such, also, has been the consistent position of the courts of the United
States of America, whose decisions have a persuasive effect in this
jurisdiction, our constitutional system in the 1935 Constitution being
patterned after that of the United States. Besides, no plausible reason has,
to my mind, been advanced to warrant a departure from said position,
consistently with the form of government established under said
Constitution..
The Solicitor General maintains in his comment the affirmative view and
this is his main defense. In support thereof, he alleges that "petitioners
would have this Court declare as invalid the New Constitution of the
Republic" from which he claims "this Court now derives its authority";
that "nearly 15 million of our body politic from the age of 15 years have
mandated this Constitution to be the New Constitution and the prospect of
unsettling acts done in reliance on it caution against interposition of the
power of judicial review"; that "in the case of the New Constitution, the
government has been recognized in accordance with the New
Constitution"; that "the country's foreign relations are now being
conducted in accordance with the new charter"; that "foreign governments
have taken note of it"; that the "plebiscite cases" are "not precedents for
holding questions regarding proposal and ratification justiciable"; and that
"to abstain from judgment on the ultimate issue of constitutionality is not
to abdicate duty."
Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of

the respondents therein that the question whether Presidential Decree No.
73 calling a plebiscite to be held on January 15, 1973, for the ratification or
political nature, and We unanimously declared that the issue was
a justiciable one. With identical unanimity, We overruled the respondents'
contention in the 1971 habeas corpus cases, 19 questioning Our authority
to determine the constitutional sufficiency of the factual bases of the
in Barcelona v. Baker 20 and Montenegro v. Castaeda, 21insofar as it
adhered to the former case, which view We, accordingly, abandoned and
refused to apply. For the same reason, We did not apply and expressly
modified, in Gonzales v. Commission on Elections, 22 the political-question
theory adopted inMabanag v. Lopez Vito. 23 Hence, respondents herein
urge Us to reconsider the action thus taken by the Court and to revert to
and follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez
Vito. 24
At the outset, it is obvious to me that We are not being asked to "declare"

the new Constitution invalid. What petitioners dispute is the theory that it
has been validly ratified by the people, especially that they have done
so in accordance with Article XV of the 1935 Constitution. The petitioners
maintain that the conclusion reached by the Chief Executive in the
dispositive portion of Proclamation No. 1102 is not borne out by the
whereases preceding the same, as the predicates from which said
conclusion was drawn; that the plebiscite or "election" required in said
Article XV has not been held; that the Chief Executive has no authority,
under the 1935 Constitution, to dispensewith said election or plebiscite;
that the proceedings before the Citizens' Assemblies did not constitute and
may not be considered as such plebiscite; that the facts of record
abundantly show that the aforementioned Assemblies could not have been
held throughout the Philippines from January 10 to January 15, 1973; and
that, in any event, the proceedings in said Assemblies are null and void as
an alleged ratification of the new Constitution proposed by the 1971
69
The reasons adduced in support thereof are, however, substantially the

same as those given in support of the political-question theory advanced in
said habeas corpus and plebiscite cases, which were carefully considered
by this Court and found by it to be legally unsound and constitutionally
untenable. As a consequence, Our decision in the aforementioned habeas
corpus cases partakes of the nature and effect of a stare decisis, which
gained added weight by its virtual reiteration in the plebiscite cases.
jurisdiction or in excess thereof or in violation of law. And so, when a power

vested
in
said
officer
or
branch
of
the
government
is absolute or unqualified, the acts in the exercise of such power are said to
be political in nature, and, consequently, non-justiciable or beyond judicial
review. Otherwise, courts of justice would be arrogating upon themselves a
power conferred by the Constitution upon another branch of the service to
the exclusion of the others. Hence, in Taada v. Cuenco, 26 this Court
quoted with approval from In re McConaughy, 27 the following:
The reason why the issue under consideration and other issues of similar
character are justiciable, not political, is plain and simple. One of the
principal bases of the non-justiciability of so-called political questions is the
principle of separation of powers characteristic of the Presidential
system of government the functions of which are classified or divided,
by reason of their nature, into three (3) categories, namely: 1) those
involving the making of laws, which are allocated to the legislative
department; 2) those concerned mainly with the enforcement of such laws
and of judicial decisions applying and/or interpreting the same, which
belong to the executive department; and 3) those dealing with the
settlement of disputes, controversies or conflicts involving rights, duties or
prerogatives that are legally demandable and enforceable, which are
apportioned to courts of justice. Within its own sphere butonly
within such sphere each department is supreme and independent of the
others, and each is devoid of authority, not only to encroach upon the
powers or field of action assigned to any of the other departments, but,
also, to inquire into or pass upon the advisability or wisdom of the acts
performed, measures taken or decisions made by the other departments
provided that such acts, measures or decisions are within the area
allocated thereto by the Constitution. 25
"At the threshold of the case we are met with the assertion
that the questions involved are political, and not judicial. If
this is correct, the court has no jurisdiction as the
certificate of the state canvassing board would then be
final, regardless of the actual vote upon the amendment.
The question thus raised is a fundamental one; but it has
been so often decided contrary to the view contended for
by the Attorney General that it would seem to be finally
settled.
xxx xxx xxx
"... What is generally meant, when it is said that a question
is political, and not judicial, is that it is a matter which is to
be exercised by the people in their primary political
capacity, or that it has been specifically delegated to some
other
department
or
particular
officer
of
the
government, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re
Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green
vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher
vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St.
Rep.
220.
Thus
theLegislature
may
in
its
discretion determine whether it will pass law or submit a
proposed constitutional amendment to the people. The
courts have no judicial control over such matters, not
merely becausethey involve political questions, but
because they are matters which the people have by the
Constitution delegated to the Legislature. The Governor
may exercise the powers delegated him, free from judicial
control, so long as he observes the laws act within the
limits of the power conferred. Hisdiscretionary acts cannot
be controllable, not primarily because they are of a politics
nature, but because the Constitution and laws have placed
the particular matter under his control. But every officer
under constitutional government must act accordingly to
law and subject its restrictions, and every departure
therefrom or disregard thereof must subject him to that
restraining and controlling power of the people, acting
This principle of separation of powers under the presidential system goes

hand in hand with the system of checks and balances, under which each
department is vested by the Fundamental Law with some powers to
forestall, restrain or arrest a possible or actual misuse or abuse of powers
by the other departments. Hence, the appointing power of the Executive,
his pardoning power, his veto power, his authority to call the Legislature or
Congress to special sessions and even to prescribe or limit the object or
objects of legislation that may be taken up in such sessions, etc.
Conversely, Congress or an agency or arm thereof such as the
commission on Appointments may approve or disapprove some
appointments made by the President. It, also, has the power of
appropriation, to "define, prescribe, and apportion the jurisdiction of the
various courts," as well as that of impeachment. Upon the other hand,
under the judicial power vested by the Constitution, the "Supreme Court
and ... such inferior courts as may be established by law," may settle or
decide with finality, not only justiciable controversies between private
individuals or entities, but, also, disputes or conflicts between a private
individual or entity, on the one hand, and an officer or branch of the
government, on the other, or between two (2) officers or branches of
service, when the latter officer or branch is charged with acting without
70

official action. The recognition of this principle, unknown
except in Great Britain and America, is necessary, to "the
end that the government may be one of laws and not of
men"
words
which
Webster
said
were the
greatest contained in any written constitutional document."
(Emphasis supplied.)
political excitement, the great landmarks of the Constitution are apt to be

forgotten or marred, if not entirely obliterated. In cases of conflict,
the judicialdepartment is the only constitutional organ which can be called
upon to determine the proper allocation of powers between the several
departments" of the government. 30
and, in an attempt to describe the nature of a political question in terms, it

was hoped, understandable to the laymen, We added that "... the term
"political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy" in matters concerning the
government of a State, as a body politic. "In other words, in the language
of Corpus Juris Secundum (supra), it refers to "those questions which,
under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the government." It is
concerned with issues dependent upon the wisdom, not legality, of a
particular measure."
Luther v. Borden was an action for trespass filed by Luther with the Circuit
Court of the United States against Borden and others for having forcibly
entered into Luther's house, in Rhode Island, sometime in 1842. The
defendants who were in the military service of said former colony of
England, alleged in their defense that they had acted in obedience to the
commands of a superior officer, because Luther and others were engaged
in a conspiracy to overthrow the government by force and the state had
been placed by competent authority under Martial Law. Such authority was
the charter government of Rhode Island at the time of the Declaration of
Independence, for unlike other states which adopted a new Constitution
upon secession from England Rhode Island retained its form of
government under a British Charter, making only such alterations, by acts
of the Legislature, as were necessary to adapt it to its subsequent
condition as an independent state. It was under this form of government
when Rhode Island joined other American states in the Declaration of
Independence and, by subsequently ratifying the Constitution of the United
States, became a member of the Union. In 1843, it adopted a new
Constitution.
The Solicitor General has invoked Luther v. Borden 31 in support of his

stand that the issue under consideration is non-justiciable in nature.
Neither the factual background of that case nor the action taken therein by
the Federal Supreme Court has any similarity with or bearing on the cases
under consideration.
Accordingly, when the grant of power is qualified, conditional or subject to

limitations, the issue on whether or not the prescribed qualifications or
conditions have been met, or the limitations respected, is justiciable or
non-political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or
limitations particularly those prescribed or imposed by the Constitution
would be set at naught. What is more, the judicial inquiry into such issue
and the settlement thereof are the main functions of courts of justice under
the Presidential form of government adopted in our 1935 Constitution, and
the system of checks and balances, one of its basic predicates. As a
consequence, We have neither the authority nor the discretion to decline
passing upon said issue, but are under the ineluctable obligation made
particularly more exacting and peremptory by our oath, as members of the
highest Court of the land, to support and defend the Constitution to
settle it. This explains why, in Miller v. Johnson, 28 it was held that courts
have a "duty, rather than a power", to determine whether another branch
of the government has "kept within constitutional limits." Not satisfied with
this postulate, the court went farther and stressed that, if the Constitution
provides how it may be amended as it is in our 1935 Constitution
"then, unless the manner is followed, the judiciary as the interpreter of
that constitution, will declare the amendment invalid." 29 In fact, this very
Court speaking through Justice Laurel, an outstanding authority on
Philippine Constitutional Law, as well as one of the highly respected and
foremost leaders of the Convention that drafted the 1935 Constitution
declared, as early as July 15, 1936, that "(i)n times of social disquietude or
Prior thereto, however, many citizens had become dissatisfied with the
charter government. Memorials addressed by them to the Legislature
having failed to bring about the desired effect, meetings were held and
associations formed by those who belonged to this segment of the
population which eventually resulted in a convention called for the
drafting of a new Constitution to be submitted to the people for their
adoption or rejection. The convention was not authorized by any law of the
existing government. The delegates to such convention framed a new
Constitution which was submitted to the people. Upon the return of the
votes cast by them, the convention declared that said Constitution had
been adopted and ratified by a majority of the people and became the
paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number of
citizens of the state, contested, however, the validity of said proceedings.
This notwithstanding, one Thomas W. Dorr, who had been elected governor
under the new Constitution of the rebels, prepared to assert authority by
71
force of arms, and many citizens assembled to support him. Thereupon,

the charter government passed an Act declaring the state under Martial
Law and adopted measures to repel the threatened attack and subdue the
rebels. This was the state of affairs when the defendants, who were in the
military service of the charter government and were to arrest Luther, for
engaging in the support of the rebel government which was never able
to exercise any authority in the state broke into his house.
and adopted under the sanction and laws of the charter

government.
The point, then, raised here has been already decided by
the courts of Rhode Island. The question relates,
altogether, to the constitution and laws of that State, and
the well settled rule in this court is, that the courts of the
United States adopt and follow the decisions of the State
courts in questions which concern merely the constitution
and laws of the State.
Meanwhile, the charter government had taken measures to call its own
convention to revise the existing form of government. Eventually, a new
constitution was drafted by a convention held under the authority of the
charter government, and thereafter was adopted and ratified by the
people. "(T)he times and places at which the votes were to be given, the
persons who were to receive and return them, and the qualifications of the
voters having all been previously authorized and provided for by law
passed by the charter government," the latter formally surrendered all of
its powers to the new government, established under its authority, in May
1843, which had been in operationuninterruptedly since then.
Upon what ground could the Circuit Court of the United

States which tried this case have departed from this rule,
and disregarded and overruled the decisions of the courts
of Rhode Island? Undoubtedly the courts of the United
States have certain powers under the Constitution and laws
of the United States which do not belong to the State
courts. But the power of determining that a State
government has been lawfully established, which the
courts of the State disown and repudiate, is not one of
them. Upon such a question the courts of the United States
are bound to follow the decisions of the State tribunals,
and must therefore regard the charter government as the
lawful and established government during the time of this
contest. 32
About a year before, or in May 1842, Dorr, at the head of a military force,
had made an unsuccessful attempt to take possession of the state arsenal
in Providence, but he was repulsed, and, after an "assemblage of some
hundreds of armed men under his command at Chepatchet in the June
following, which dispersed upon approach of the troops of the old
government, no further effort was made to establish" his government. "...
until the Constitution of 1843" adopted under the auspices of the charter
government "went into operation, the charter government continued to
assert its authority and exercise its powers and to enforce obedience
throughout the state ... ."
It is thus apparent that the context within which the case of Luther v.
Borden was decided is basically and fundamentally different from that of
the cases at bar. To begin with, the case did not involve a federal question,
but one purely municipal in nature. Hence, the Federal Supreme Court was
"bound to follow the decisions of the State tribunals" of Rhode Island
upholding the constitution adopted under the authority of the charter
government. Whatever else was said in that case constitutes, therefore,
an obiter dictum. Besides, no decision analogous to that rendered by the
State Court of Rhode Island exists in the cases at bar. Secondly, the states
of the Union have a measure of internal sovereignty upon which the
Federal Government may not encroach, whereas ours is a unitary form of
government, under which our local governments derive their authority
from the national government. Again,unlike our 1935 Constitution, the
charter or organic law of Rhode Island contained no provision on the
manner, procedure or conditions for its amendment.
Having offered to introduce evidence to prove that the constitution of the

rebels had been ratified by the majority of the people, which the Circuit
Court rejected, apart from rendering judgment for the defendants, the
plaintiff took the case for review to the Federal Supreme Court which
affirmed the action of the Circuit Court, stating:
It is worthy of remark, however, when we are referring to
the authority of State decisions, that the trial of Thomas W.
Dorr took place after the constitution of 1843 went into
operation. The judges who decided that case held their
authority under that constitution and it is admitted on all
hands that it was adopted by the people of the State, and
is the lawful and established government. It is the decision,
therefore, of a State court, whose judicial authority to
decide upon the constitution and laws of Rhode Island is
not questioned by either party to this controversy,
although the government under which it acted was framed
Then, too, the case of Luther v. Borden hinged more on the question of
recognition of government, than on recognition of constitution, and there is
a fundamental difference between these two (2) types of recognition, the
first being generally conceded to be a political question, whereas the
nature of the latter depends upon a number of factors, one of them being
whether the new Constitution has been adopted in the manner prescribed
72
in the Constitution in force at the time of the purported ratification of the

former, which is essentially a justiciable question. There was, in Luther v.
Borden, a conflict between two (2) rival governments, antagonistic to each
other, which is absent in the present cases. Here, the Government
established under the 1935 Constitution is the very same government
whose Executive Department has urged the adoption of the new or revised
Constitution proposed by the 1971 Constitutional Convention and now
alleges that it has been ratified by the people.
90th Congress of the U.S. Said dismissal was predicated upon the
ground, inter alia, that the issue was political, but the Federal Supreme
Court held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of American
jurisprudence on the matter. Owing to the lucidity of its appraisal thereof,
We append the same to this opinion as Annex A thereof.
After an, exhaustive analysis of the cases on this subject, the Court
concluded:
In short, the views expressed by the Federal Supreme Court in Luther v.

Borden, decided in 1849, on matters otherthan those referring to its power
to review decisions of a state court concerning the constitution and
government ofthat state, not the Federal Constitution or Government, are
manifestly neither, controlling, nor even persuasive in the present cases,
having as the Federal Supreme Court admitted no authority whatsoever
to pass upon such matters or to review decisions of said state court
thereon. In fact, referring to that case, the Supreme Court of Minnessota
had the following to say:
The authorities are thus practically uniform in holding that

whether a constitutional amendment has been properly
adopted according to the requirements of an existing
Constitution is a judicial question. There can be little doubt
that the consensus of judicial opinion is to the effect that it
is the absolute dutyof the judiciary to determine whether
the Constitution has been amended in the manner required
by the Constitution, unless a special tribunal has been
created to determine the question; and even then many of
the courts hold that the tribunal cannot be permitted to
illegally amend the organic law. ... . 36
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by

those who assert that the courts have no power to
determine questions of a political character. It is interesting
historically, but it has not the slightest application to the
case at bar. When carefully analyzed, it appears that it
merely determines that the federal courts will accept as
final and controlling a decision of the highest court of a
state upon a question of the construction of the
Constitution of the state. ... . 33
In the light of the foregoing, and considering that Art. XV of our 1935
Constitution prescribes the method or procedure for its amendment, it is
clear to my mind that the question whether or not the revised Constitution
drafted by the 1971 Constitutional Convention has been ratified in
accordance with said Art. XV is a justiciable one and non-political in nature,
and that it is not only subject to judicial inquiry, but, also, that it is the
Court's bounden duty to decide such question.
Baker v. Carr, 34 cited by respondents, involved an action to annul a

Tennessee statute apportioning the seats in the General Assembly among
the counties of the State, upon the theory that the legislation violated the
equal protection clause. A district court dismissed the case upon the
ground, among others, that the issue was a political one, but, after a
painstaking review of the jurisprudence on the matter, the Federal
Supreme Court reversed the appealed decision and held that said
issue was justiciable and non-political, inasmuch as:"... (d)eciding whether
a matter has in any measure been committed by the Constitution
to another branch of government, or whether the action of that
branch exceeds whatever authority has been committed, is itself a delicate
exercise in constitutional interpretation, and is a responsibility of this Court
as ultimate interpreter of the Constitution ... ."
The Supreme Court of the United States has meaningfully postulated that
"the courts cannot reject as 'no law suit' " because it allegedly involves a
political question "a bona fide controversy as to whether some action
denominated "political" exceeds constitutional authority." 37
III
Has the proposed new or revised Constitution been ratified conformably to
said Art. XV of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the
President "is without authority to create the Citizens' Assemblies" through
which, respondents maintain, the proposed new Constitution has been
ratified; that said Assemblies "are without power to approve the proposed
Constitution"; 3) that the President "is without power to proclaim the
ratification by the Filipino people of the proposed Constitution"; and 4) that
Similarly, in Powell v. McCormack, 35 the same Court, speaking through

then Chief Justice Warren, reversed a decision of the Court of Appeals of
New York affirming that of a Federal District Court, dismissing Powell's
action for a declaratory judgment declaring thereunder that he whose
qualifications were uncontested had been unlawfully excluded from the
73
"the election held (in the Citizens' Assemblies) to ratify the proposed
1. That the amendments to the Constitution be proposed either by

Congress or by a convention called for that purpose, "by a vote of threefourths of all the Members of the Senate and the House of Representatives
voting separately," but "in joint session assembled";
Apart from substantially reiterating these grounds support of said negative

view, the petitioners in L-36164 contend: 1) that the President "has no
power to call a plebiscite for the ratification or rejection" of the proposed
new Constitution or "to appropriate funds for the holding of the said
plebiscite"; 2) that the proposed new or revised Constitution "is vague and
incomplete," as well as "contains provisions which are beyond the powers
of the 1971 Convention to enact," thereby rendering it "unfit for ...
submission the people;" 3) that "(t)he period of time between November
1972 when the 1972 draft was approved and January 11-15, 1973," when
the Citizens' Assemblies supposedly ratified said draft, "was too short,
worse still, there was practically no time for the Citizens' Assemblies to
discuss the merits of the Constitution which the majority of them have not
read a which they never knew would be submitted to them ratification until
they were asked the question "do you approve of the New Constitution?"
during the said days of the voting"; and that "(t)here was altogether no
freedom discussion and no opportunity to concentrate on the matter
submitted to them when the 1972 draft was supposedly submitted to the
Citizens' Assemblies for ratification."
2. That such amendments be "submitted to the people for their ratification"

at an "election"; and
3. That such amendments be "approved by a majority of the votes cast" in
said election.
Compliance with the first requirement is virtually conceded, although the
petitioners in L-36164 question the authority of the 1971 Constitutional
Convention to incorporate certain provisions into the draft of the new or
revised Constitution. The main issue in these five (5) cases hinges,
therefore, on whether or not the last two (2) requirements have been
complied with.
2. Has the contested draft of the new or revised Constitution been
submitted to the people for their ratification conformably to Art. XV of the
Constitution?
Petitioner in L-36236 added, as arguments in support of the negative view,

that : 1) "(w)ith a government-controlled press, there can never be a fair
and proper submission of the proposed Constitution to the people"; and 2)
Proclamation No. 1102 is null and void "(i)nasmuch as the ratification
process" prescribed "in the 1935 Constitution was not followed."
In this connection, other provisions of the 1935 Constitution concerning

"elections" must, also, be taken into account, namely, section I of Art. V
and Art. X of said Constitution. The former reads:
Section 1. Suffrage may be exercised by male citizens of
the Philippines not otherwise disqualified by law, who are
twenty-one years of age or over and are able to read and
write, and who shall have resided in the Philippines for one
year and in the municipality wherein they propose to vote
for at least six months preceding the election. The National
Assembly shall extend the right of suffrage to women, if in
a plebiscite which shall be held for that purpose within two
years after the adoption of this Constitution, not less than
three hundred thousand women possessing the necessary
qualifications shall vote affirmatively on the question.
Besides adopting substantially some of the grounds relied upon by the

petitioners in the above-mentioned cases, the petitioners in L-36283 argue
that "(t)he creation of the Citizens' Assemblies as the vehicle for the
ratification of the Constitution was a deception upon the people since the
President announced the postponement of the January 15, 1973 plebiscite
to either February 19 or March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the negative
view have already been set forth earlier in this opinion. Hence, it is
unnecessary to reproduce them here. So it is, with respect to the positions
taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose
Roy although more will be said later about them and by the Solicitor
General, on behalf of the other respondents in that case and the
respondents in the other cases.
Sections 1 and 2 of Art. X of the Constitution ordain in part:

Section 1. There shall be an independent Commission on
Elections composed of a Chairman and two other Members
to be appointed by the President with the consent of the
Commission on Appointments, who shall hold office for a
term of nine years and may not be reappointed. ...
1. What is the procedure prescribed by the 1935 Constitution for its

amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are
essential, namely:
xxx xxx xxx

74
Sec.
2.
The
Commission
on
Elections
shall
have exclusive charge
of
the
enforcement
and
administration of all laws relative to the conduct of
elections and shall exercise all other functions which may
be conferred upon it by law. It shall decide, save those
involving the right to vote, all administrative questions,
affecting elections, including the determination of the
number and location of polling places, and the
appointment of election inspectors and of other election
officials. All
law
enforcement
agencies
and
instrumentalities of the Government, when so required by
the Commission, shall act as its deputiesfor the purpose
of insuring fee, orderly, and honest elections. The
decisions, orders, and rulings of the Commission shall be
subject to review by the Supreme Court.
that drafted said Constitution which report was, in turn, "strongly

influenced by the election laws then in force in the Philippines ... ." 40 " Said
committee had recommended: 1) "That the right of suffrage should
exercised only by male citizens of the Philippines." 2) "That should
be limited to those who could read and write." 3) "That the duty to vote
should be madeobligatory." It appears that the first recommendation was
discussed extensively in the Convention, and that, by way of compromise,
it was eventually agreed to include, in section 1 of Art. V of the
Constitution, the second sentence thereof imposing upon the National
Assembly established by the original Constitution instead of the
bicameral Congress subsequently created by amendment said Constitution
the duty to "extend the right of suffrage women, if in a plebiscite to, be
held for that purpose within two years after the adoption of this
Constitution, not less than three hundred thousand women possessing the
necessary qualifications shall vote affirmatively on the question." 41
xxx xxx xxx
The third recommendation on "compulsory" voting was, also debated upon

rather extensively, after which it was rejected by the Convention. 42 This
accounts, in my opinion, for the permissive language used in the first
sentence of said Art. V. Despite some debates on the age qualification
amendment having been proposed to reduce the same to 18 or 20, which
were rejected, and the residence qualification, as well as the
disqualifications to the exercise of the right of suffrage the second
recommendation limiting the right of suffrage to those who could "read and
write" was in the language of Dr. Jose M. Aruego, one of the Delegates to
said Convention "readily approved in the Convention without any
dissenting vote," although there was some debate on whether the
Fundamental Law should specify the language or dialect that the voter
could read and write, which was decided in the negative. 43
39
a. Who may vote in a plebiscite under Art. V of the

Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a
limitation upon the exercise of the right of suffrage. They claim that no
other persons than "citizens of the Philippines not otherwise disqualified by
law, who are twenty-one years of age or over and are able to read and
write, and who shall have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months preceding
the election," may exercise the right of suffrage in the Philippines. Upon
the other hand, the Solicitor General contends that said provision
merely guarantees the right of suffrage to persons possessing the
aforementioned qualifications and none of the disqualifications, prescribed
by law, and that said right may be vested by competent authorities in
personslacking some or all of the aforementioned qualifications,
and possessing some of the aforesaid disqualifications. In support of this
view, he invokes the permissive nature of the language "(s)uffrage may
be exercised" used in section 1 of Art. V of the Constitution, and the
provisions of the Revised Barrio Charter, Republic Act No. 3590, particularly
sections 4 and 6 thereof, providing that citizens of the Philippines
"eighteen years of age or over," who are registered in the list of barrio
assembly members, shall be members thereof and may participate as such
in the plebiscites prescribed in said Act.
What is relevant to the issue before Us is the fact that the constitutional
provision
under
consideration
was
meant
to
be
and
is
a grant or conferment of a right to persons possessing the qualifications
and none of the disqualifications therein mentioned, which in turn,
constitute a limitation of or restriction to said right, and cannot,
accordingly, be dispensed with, except by constitutional amendment.
Obviously, every such constitutional grant or conferment of a right is
necessarily a negation of the authority of Congress or of any other branch
of the Government to deny said right to the subject of the grant and, in
this sense only, may the same partake of the nature of a guarantee. But,
this does not imply not even remotely, that the Fundamental Law allows
Congress or anybody else to vest in those lacking the qualifications and
having the disqualifications mentioned in the Constitution the right of
suffrage.
I cannot accept the Solicitor General's theory. Art. V of the Constitution

declares who may exercise the right of suffrage, so that those lacking the
qualifications therein prescribed may not exercise such right. This view is
borne out by the records of the Constitutional Convention that drafted the
1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was
largely based on the report of the committee on suffrage of the Convention
At this juncture, it is noteworthy that the committee on suffrage

responsible for the adoption of section 1 of Art. V of the Constitution was
"strongly influenced by the election laws then in force in the Philippines."
Our first Election Law was Act 1582, passed on January 9, 1907, which was
75
partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into
the Administrative Code of 1916 Act 2657 as chapter 20 thereof, and
then in the Administrative Code of 1917 Act 2711 as chapter 18
thereof, which, in turn, was amended by Act 3387, approved on December
3, 1927. Sections 431 and 432 of said Code of 1917, prescribing,
respectively, the qualifications for and disqualifications from voting, are
quoted below. 44 In all of these legislative acts, the provisions concerning
the qualifications of voters partook of the nature of a grant or recognition
of the right of suffrage, and, hence, of adenial thereof to those who lacked
the requisite qualification and possessed any of the statutory
disqualifications. In short, the history of section 1, Art. V of the
Constitution, shows beyond doubt than the same conferred not
guaranteed the authority to persons having the qualifications prescribed
therein and none of disqualifications to be specified in ordinary laws and,
necessary implication, denied such right to those lacking any said
qualifications, or having any of the aforementioned disqualifications.
to read and write," and residents the barrio "during the six months
immediately preceding election, duly registered in the list of voters" and "
otherwise disqualified ..." just like the provisions of present and past
election codes of the Philippines and Art. V of the 1935 Constitution
"may vote in the plebiscite."
I believe, however, that the apparent conflict should resolved in favor of
the 21-year-old members of the assembly, not only because this
interpretation is in accord with Art. V the Constitution, but, also, because
provisions of a Constitution particularly of a written and rigid one, like
ours generally accorded a mandatory status unless the intention to the
contrary is manifest, which is not so as regards said Art. V for otherwise
they would not have been considered sufficiently important to be included
in the Fundamental Law of the land. 48 Besides, it would be illogical, if not
absurd, believe that Republic Act No. 3590 requires, for the most
important measures for which it demands in addition to favorable action
of the barrio council the approval of barrio assembly through
a plebiscite, lesser qualifications than those prescribed in dealing with
ordinary measures for which such plebiscite need not be held.
This view is further bolstered by the fact that the 1971 Constitutional
Convention sought the submission to a plebiscite of a "partial amendment"
to said section 1 of Art. V of the 1935 Constitution, by reducing the voting
age from twenty-one (21) years to eighteen (18) years, which, however,
did not materialize on account of the decision of this Court in Tolentino v.
Commission on Elections, 45 granting the writs, of prohibition and injunction
therein applied for, upon the ground that, under the Constitution, all of the
amendments adopted by the Convention should be submitted in "an
election" or a single election, not separately or in several or distinct
elections, and that the proposed amendment sought to be submitted to a
plebiscite was not even a complete amendment, but a "partial
amendment" of said section 1, which could be amended further, after its
ratification, had the same taken place, so that the aforementioned partial
amendment
was,
for
legal
purposes,
no
more
than
a provisional or temporary amendment. Said partial amendment was
predicated upon the generally accepted contemporary construction that,
under the 1935 Constitution, persons below twenty-one (21) years of age
could not exercise the right of suffrage, without a previous amendment of
the Constitution.
It is similarly inconceivable that those who drafted the 1935 Constitution

intended section 1 of Art. V thereof to applyonly to elections of public
officers, not to plebiscites for the ratification of amendments to the
Fundamental Law or revision thereof, or of an entirely new Constitution,
and permit the legislature to require lesser qualifications for such
ratification, notwithstanding the fact that the object thereof much more
important if not fundamental, such as the basic changes introduced in
the draft of the revised Constitution adopted by the 1971 Constitutional
Convention, which a intended to be in force permanently, or, at least, for
many decades, and to affect the way of life of the nation and,
accordingly, demands greater experience and maturity on the part of the
electorate than that required for the election of public officers, 49 whose
average term ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years,
regardless of whether or not they possessed the other qualifications laid
down in both the Constitution and the present Election Code, 50 and of
whether or not they are disqualified under the provisions of said
Constitution and Code, 51 or those of Republic Act No. 3590, 52 have
participated and voted in the Citizens' Assemblies that have allegedly
ratified the new or revised Constitution drafted by the 1971 Constitutional
Convention.
Upon the other hand, the question, whether 18-year-old members of barrio
assemblies may vote in barrio assembly plebiscites is, to say the least, a
debatable one. Indeed, there seems to be a conflict between the last
paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the
"majority vote of all the barrio assembly members" (which include all barrio
residents 18 years of age or over, duly registered in the list of barrio
assembly members) is necessary for the approval, in an assembly
plebiscite, of "any budgetary, supplemental appropriations or special tax
ordinances," whereas, according to the paragraph preceding the
penultimate one of said section, 47 "(a)ll duly registered barrio assembly
membersqualified to vote" who, pursuant to section 10 of the same Act,
must be citizens "of the Philippines, twenty-one years of age or over, able
In fact, according to the latest official data, the total number of registered
voters 21 years of age or over in the entire Philippines, available in January
1973, was less than 12 million. Yet, Proclamation No. 1102 states that
14,976,56 "members of all the Barangays (Citizens Assemblies) voted for
the adoption of the proposed Constitution, as against ... 743,869 who voted
76
for its rejection," whereas, on the question whether or not the people still
wanted a plebiscite to be called to ratify the new Constitution, "...
14,298,814 answered that there was no need for a plebiscite and that the
vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite." In other words, it is conceded that the number of people
who allegedly voted at the Citizens' Assemblies for exceeded the number
of registered voters under the Election Code in force in January 1973.
It seems to
us that
a vote
is cast
when
a ballot is deposited indicating a "choice." ... The word
"cast" means "deposit (a ballot) formally or officially ... .
It is thus clear that the proceedings held in such Citizens' Assemblies

and We have more to say on this point in subsequent pages were
fundamentally irregular, in that persons lacking the qualifications
prescribed in section 1 of Art. V of the Constitution were allowed to vote in
said Assemblies. And, since there is no means by which the invalid votes of
those less than 21 years of age can be separated or segregated from those
of the qualified voters, the proceedings in the Citizens' Assemblies must be
considered null and void. 53
In short, said Art. XV envisages with the term "votes cast" choices
made on ballots not orally or by raising by the persons taking part in
plebiscites. This is but natural and logical, for, since the early years of the
American regime, we had adopted the Australian Ballot System, with its
major characteristics, namely, uniform official ballotsprepared and
furnished by the Government and secrecy in the voting, with the
advantage of keeping records that permit judicial inquiry, when necessary,
into the accuracy of the election returns. And the 1935 Constitution has
been consistently interpreted in all plebiscites for the ratification rejection
of proposed amendments thereto, from 1935 to 1967. Hence, the viva
voce voting in the Citizens' Assemblies was and is null and void ab initio.
... In simple words, we would define a "vote cast" as the

exercise on a ballot of the choice of the voter on the
measure proposed. 58
It has been held that "(t)he power to reject an entire poll ... should be
exercised ... in a case where it is impossible to ascertain with reasonable
certainty the true vote," as where "it is impossible to separate the legal
votes from the illegal or spurious ... ." 54
In Usman v. Commission on Elections, et al.,
55
b. How should the plebiscite be held? (COMELEC supervision indispensable;

essential requisites)
We held:
Just as essential as compliance with said Art. V of the 19 Constitution is
that of Art. X thereof, particularly its sections 1 and 2. Indeed, section 1
provides that "(t)here shall be an independent Commission on
Elections ... ." The point to be stressed here is the term "independent."
Indeed, why was the term used?
Several circumstances, defying exact description and

dependent mainly on the factual milieu of the particular
controversy, have the effect of destroying the integrity and
authenticity of disputed election returns and of avoiding
their prima facie value and character. If satisfactorily
proven, although in a summary proceeding, such
circumstances as alleged by the affected or interested
parties, stamp the election returns with the indelible mark
of falsity and irregularity, and, consequently, of
unreliability, and justify their exclusion from the canvass.
In the absence of said constitutional provision as to the independence of

the Commission, would it have been depends upon either Congress or the
Judiciary? The answer must be the negative, because the functions of the
Commission "enforcement and administration" of election laws are
neither legislative nor judicial in nature, and, hence, beyond the field
allocated to either Congress or courts of justice. Said functions are by their
nature essentially executive, for which reason, the Commission would be
under the "control" of the President, pursuant to section 10, paragraph (1)
of Art. VII of the Constitution, if Art. X thereof did not explicitly declare that
it (the Commission) is an "independent" body. In other words, in amending
the original 1935 Constitution, by inserting therein said Art. X, on the
Commission
on
Elections,
the
purpose
was
to
make
said
Commission independent principally of the Chief Executive.
Then, too, the 1935 Constitution requires "a majority of the votes cast" for
a proposed amendment to the Fundamental Law to be "valid" as part
thereof, and the term "votes cast" has a well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville
County Commissioners, 65 N.W. 956, 64 Minn. 16, to have
been used as an equivalent of "ballots cast." 56
And the reason therefor is, also, obvious. Prior to the creation of the
Commission on Elections as a constitutional organ, election laws in the
Philippines were enforced by the then Department of the Interior, through
its Executive Bureau, one of the offices under the supervision and control
of said Department. The same like other departments of the Executive
The word "cast" is defined as "to deposit formally or

officially." 57
77
Branch of the Government was, in turn, under the control of the Chief
Executive, before the adoption of the 1935 Constitution, and had been
until the abolition of said Department, sometime ago under the control
of the President of the Philippines, since the effectivity of said Fundamental
Law. Under the provisions thereof, the Executive could so use his power of
control over the Department of the Interior and its Executive Bureau as to
place the minority party at such a great, if not decisive, disadvantage, as
to deprive it, in effect, of the opportunity to defeat the political party in
power, and, hence, to enable the same to perpetuate itself therein. To
forestall this possibility, the original 1935 Constitution was amended by the
establishment of the Commission on Elections as a constitutional
body independent primarily of the President of the Philippines.
that "(t)he decisions, orders, and ruling of the Commission" shall not be
subject to review, except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution,
Rep. Act No. 6388, otherwise known as the Election Code of 1971,
implements the constitutional powers of the Commission on Elections and
grants additional powers thereto, some of which are enumerated in
sections 5 and 6 of said Act, quoted below. 64 Moreover, said Act
contains, inter alia, detailed provisions regulating contributions and other
(corrupt) practices; the establishment of election precincts; the designation
and arrangement of polling places, including voting booths, to protect the
secrecy of the ballot; formation of lists of voters, the identification and
registration of voters, the proceedings therefor, as well as for the inclusion
in, or exclusion or cancellation from said list and the publication thereof;
the establishment of municipal, provincial and files of registered voters; the
composition and appointment of board of election inspectors; the
particulars of the official ballots to be used and the precautions to be taken
to insure authenticity thereof; the procedure for the casting of votes; the
counting of votes by boards of inspectors; the rules for the appreciation of
ballots and the preparation and disposition of election returns; the
constitution and operation of municipal, provincials and national boards of
canvassers; the presentation of the political parties and/or their candidates
in each election precinct; the proclamation of the results, including, in the
case of election of public officers, election contests; and the jurisdiction of
courts of justice in cases of violation of the provisions of said Election Code
and the penalties for such violations.
The independence of the Commission was sought to be strengthened by

the long term of office of its members nine (9) years, except those first
appointed 59 the longest under the Constitution, second only to that of
the Auditor General 60; by providing that they may not be removed from
office except by impeachment, placing them, in this respect, on the same
plane as the President, the Vice-President, the Justices of the Supreme
Court and the Auditor General; that they may not be reappointed; that
their salaries, "shall be neither increased nor diminished during their term
of office"; that the decisions the Commission "shall be subject to review by
the Supreme Court" only 61; that "(n)o pardon, parole, or suspension
sentence for the violation of any election law may be granted without the
favorable recommendation of the Commission" 62; and, that its chairman
and members "shall not, during the continuance in office, engage in the
practice of any profession or intervene, directly or indirectly, in the
management or control of any private enterprise which in anyway may
affected by the functions of their office; nor shall they, directly or indirectly,
be financially interested in any contract with the Government or any
subdivision or instrumentality thereof." 63 Thus, the framers of the
amendment to the original Constitution of 1935 endeavored to do
everything possible protect and insure the independence of each member
of the Commission.
Few laws may be found with such meticulous and elaborate set of
provisions aimed at "insuring free, orderly, and honest election," as
envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by the socalled Barangays or Citizens' Assemblies. And no reasons have been given,
or even sought to be given therefor. In many, if not most, instances, the
election were held a viva voce, thus depriving the electorate of the right to
vote secretly one of the most, fundamental and critical features of our
election laws from time immemorial particularly at a time when the
same was of utmost importance, owing to theexistence of Martial Law.
With respect to the functions thereof as a body, section 2 of said Art. X

ordains that "(t)he Commission on Elections shall have exclusive charge of
the enforcement and administration all laws relative to the conduct of
elections," apart from such other "functions which may be conferred upon
it by law." It further provides that the Commission "shall decide, save those
involving the right to vote, all administrative question affecting elections,
including the determination of the number and location of polling places,
and the appointment of election inspectors and of other election officials."
And, to forests possible conflicts or frictions between the Commission, on
one hand, and the other offices or agencies of the executive department,
on the other, said section 2 postulates that "(a)ll law enforcement agencies
and instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring free,
orderly, and honest elections." Not satisfied with this, it declares, in effect,
In Glen v. Gnau, 65 involving the casting of many votes, openly, without

complying with the requirements of the law pertinent thereto, it was held
that the "election officers" involved "cannot be too strongly condemned"
therefor and that if they "could legally dispense with such requirement ...
they could with equal propriety dispense with all of them, including the one
that the vote shall be by secret ballot, or even by ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of the proposed
Constitution drafted by the 1971 Constitutional Convention, or on
78
December 1, 1972, Presidential Decree No. 73 (on the validity of which

which was contested in the plebiscite cases, as well as in the 1972 habeas
corpus cases 66 We need not, in the case of bar, express any opinion)
was issued, calling a plebiscite, to be held on January 15, 1973, at which
the proposed Constitution would be submitted to the people for ratification
or rejection; directing the publication of said proposed Constitution; and
declaring, inter alia, that "(t)he provision of the Election Code of 1971,
insofar as they are not inconsistent" with said decree excepting those
"regarding right and obligations of political parties and candidates"
"shall apply to the conduct of the plebiscite." Indeed, section 2 of said
Election Code of 1971 provides that "(a)ll elections of public officers except
barrio officials and plebiscites shall be conducted in the manner provided
by this Code." General Order No. 20, dated January 7, 1973, postponing
until further notice, "the plebiscite scheduled to be held on January 15,
1973," said nothing about the procedure to be followed in plebiscite to take
place at such notice, and no other order or decree has been brought to Our
attention, expressly or impliedly repealing the provisions of Presidential
Decree 73, insofar as said procedure is concerned.
No. 86-A directing the immediate submission of the result thereof to the
Department of Local Governments Community Development is not
necessarily inconsistent with, and must be subordinate to the
constitutional power of the Commission on Elections to exercise its
"exclusive authority over the enforcement and administration of all laws to
the conduct of elections," if the proceedings in the Assemblies would
partake of the nature of an "election" or plebiscite for the ratification or
rejection of the proposed Constitution.
We are told that Presidential Decree No. 86 was further amended by
Presidential Decree No. 86-B, dated 1973, ordering "that important national
issues shall from time to time; be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with Presidential Decree No. 86-A
dated January 5, 1973 and that the initial referendum include the matter of
ratification of the Constitution by the 1971 Constitutional Convention" and
that "(t)he Secretary of the Department of Local Governments and
Community Development shall insure the implementation of this order." As
in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing
directives do not necessarily exclude exercise of the powers vested by the
1935 Constitution in the Commission on Elections, even if the Executive
had the authority to repeal Art. X of our Fundamental Law which he does
not possess. Copy of Presidential Decree No. 86-B is appended hereto as
Annex B hereof.
Upon the other hand, said General Order No. 20 expressly suspended "the
provisions of Section 3 of Presidential Decree No. 73 insofar as they allow
free public discussion of proposed Constitution ... temporarily suspending
effects of Proclamation No. 1081 for the purposes of free open dabate on
the proposed Constitution ... ." This specific mention of the portions of the
decrees or orders or instructions suspended by General Order No. 20
necessarily implies that all other portions of said decrees, orders or
instructions and, hence, the provisions of Presidential Decree No. 73
outlining the procedure to be followed in the plebiscite for ratification or
rejection of the proposed Constitution remained in force, assuming that
said Decree is valid.
The point is that, such of the Barrio Assemblies as were held took place
without the intervention of the Commission on Elections, and without
complying with the provisions of the Election Code of 1971 or even of those
of Presidential Decree No. 73. What is more, they were held under the
supervision of the very officers and agencies of the Executive Department
sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse
still, said officers and agencies of the 1935 Constitution would be favored
thereby, owing to the practical indefinite extension of their respective
terms of office in consequence of section 9 of the Transitory Provisions,
found in Art. XVII of the proposed Constitution, without any elections
therefor. And the procedure therein mostly followed is such that there isno
reasonable means of checking the accuracy of the returns files by the
officers who conducted said plebiscites. This is another patent violation of
Art. of the Constitution which can hardly be sanctioned. And, since the
provisions of this article form part of the fundamental scheme set forth in
the 1935 Constitution, as amended, to insure the "free, orderly, and
honest" expression of the people's will, the aforementioned violation
thereof renders null and void the contested proceedings or alleged
plebiscite in the Citizens' Assemblies, insofar as the same are claimed to
have ratified the revised Constitution proposed by the 1971 Constitutional
Convention. "... (a)ll the authorities agree that the legal definition of an
election, as well as that which is usually and ordinarily understood by the
term, is a choosing or as election by those having a right to participate (in
the selection) of those who shall fill the offices, or of the adoption or
rejection of any public measure affecting the territory involved. 15 Cyc.
It is claimed that by virtue of Presidential Decree No. 86-A the text of

which is quoted below 67 the Executive declared, inter alia, that the
collective views expressed in the Citizens' Assemblies "shall
be considered in the formulation of national policies or programs and,
wherever practicable, shall be translated into concrete and specific
decision"; that such Citizens' Assemblies "shall consider vital national
issues ... like the holding of the plebiscite on the new Constitution ... and
others in the future, which shall serve as guide or basis for action or
decision by the national government"; and that the Citizens' Assemblies
"shall conduct between January 10 and 15, 1973, a referendum on
important national issues, including those specified in paragraph 2 hereof,
and submit the results thereof to the Department of Local Governments
and Community Development immediately thereafter, ... ." As in
Presidential Decree No. 86, this Decree No. 86-A does not and cannot
exclude the exercise of the constitutional supervisory power of the
Commission on Elections or its participation in the proceedings in said
Assemblies, if the same had been intended to constitute the "election" or
Plebiscite required Art. V of the 1935 Constitution. The provision of Decree
79
279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13

Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A.
354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law
Dictionary. 68
(Citizens Assemblies) throughout the Philippines and has thereby come into
effect."
In this connection, it is not claimed that the Chief Executive had personal
knowledge of the data he certified in said proclamation. Moreover, Art. X of
the 1935 Constitution was precisely inserted to place beyond the Executive
the power to supervise or even exercise any authority whatsoever over
"all laws relative to the conduct of elections," and, hence, whether the
elections are for the choice or selection of public officers or for the
ratification or rejection of any proposed amendment, or revision of the
Fundamental Law, since the proceedings for the latter are, also, referred to
in said Art. XV as "elections".
IV
Has
the
proposed
Constitution
aforementioned
been
approved
by
a
majority
of
the
people
in
Citizens'
Assemblies
allegedly
held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No. 1102,
the validity of which is precisely being contested by petitioners herein.
Respondents claim that said proclamation is "conclusive" upon this Court,
or is, at least, entitled to full faith and credence, as an enrolled bill; that the
proposed Constitution has been, in fact, ratified, approved or adopted by
the "overwhelming" majority of the people; that Art. XV of the 1935
Constitution has thus been "substancially" complied with; and that the
Court refrain from passing upon the validity of Proclamation No. 1102, not
only because such question is political in nature, but, also, because should
the Court invalidate the proclamation, the former would, in effect, veto the
action of the people in whom sovereignty resides and from its power are
derived.
The Solicitor General stated, in his argument before this Court, that he had
been informed that there was in each municipality a municipal association
of presidents of the citizens' assemblies for each barrio of the municipality;
that the president of each such municipal association formed part of a
provincial or city association of presidents of such municipal associations;
that the president of each one of these provincial or city associations in
turn formed part of a National Association or Federation of Presidents of
such Provincial or City Associations; and that one Francisco Cruz from
Pasig, Rizal, as President of said National Association or Federation,
reported to the President of the Philippines, in the morning of January 17,
1973, the total result of the voting in the citizens' assemblies all over the
country from January 10 to January 15, 1973. The Solicitor General further
intimated that the said municipal associations had reported the results of
the citizens' assemblies in their respective municipalities to the
corresponding Provincial Association, which, in turn, transmitted the results
of the voting in the to the Department of Local Governments and
Community Development, which tabulated the results of the voting in the
citizens' assemblies throughout the Philippines and then turned them over
to Mr. Franciso Cruz, as President or acting President of the National
Association or Federation, whereupon Mr. Cruz, acting in a ceremonial
capacity, reported said results (tabulated by the Department of
Governments and Community Development) to the Chief Executive, who,
accordingly, issued Proclamation No. 1102.
The major flaw in this process of rationalization is that it assumes, as a

fact, the very premise on which it is predicated, and which, moreover, is
contested by the petitioners. As the Supreme Court of Minnessota has
aptly put it
... every officer under a constitutional government must act
according to law and subject to its restrictions, and every
departure therefrom or disregard thereof must subject him
to the restraining and controlling of the people, acting
official action. ... .
The record shows, however, that Mr. Cruz was not even a member of any
barrio council since 1972, so that he could possibly have been
a member on January 17, 1973, of a municipal association of presidents of
barrio or ward citizens' assemblies, much less of a Provincial, City or
National Association or Federation of Presidents of any such provincial or
city associations.
Accordingly, the issue boils downs to whether or not the Executive acted
within the limits of his authority when he certified in Proclamation No. 1102
"that the Constitution proposed by the nineteen hundred and seventy-one
(1971) Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the Barangays
Secondly, at the conclusion of the hearing of these cases February 16,

1973, and in the resolution of this Court of same date, the Solicitor General
was asked to submit, together with his notes on his oral argument, a true
copy of aforementioned report of Mr. Cruz to the President and of
80
"(p)roclamation, decree, instruction, order, regulation or circular, if any,

creating or directing or authorizing creation, establishment or organization"
of said municipal, provincial and national associations, but neither a copy
of alleged report to the President, nor a copy of any "(p)roclamation,
decree, instruction, order, regulation or circular," has been submitted to
this Court. In the absence of said report, "(p)roclamation, decree,
instruction,"
etc.,
Proclamation
No.
1102
is
devoid
of
any factual and legalfoundation. Hence, the conclusion set forth in the
dispositive portion of said Proclamation No. 1102, to the effect that the
proposed new or revised Constitution had been ratified by majority of the
votes cast by the people, can not possibly have any legal effect or value.
constitutional" by said Court. "The district court found that the amendment
had no in fact been adopted, and on this appeal" the Supreme Court was
"required to determine the correctness of that conclusion."
Referring to the effect of the certification of the State Board of Canvassers
created by the Legislature and of theproclamation made by the Governor
based thereon, the Court held: "It will be noted that this board does no
more than tabulate the reports received from the various county board and
add up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9
L.R.A. (U.S.) 1221. It is settled law that the decisions of election officers,
and canvassing boards are not conclusive and that the final decision must
rest with the courts, unless the law declares that the decisions of the board
shall be final" and there is no such law in the cases at bar. "... The
correctness of the conclusion of the state board rests upon the correctness
of the returns made by the county boards and it isinconceivable that it was
intended that this statement of result should be final and conclusive
regardless of the actual facts. The proclamation of the Governor
adds nothing in the way of conclusiveness to the legal effect of the action
of the canvassing board. Its purpose is to formally notify the people of the
state of the result of the voting as found by the canvassing board. James
on Const. Conv. (4th Ed.) sec. 523."
The theory that said proclamation is "conclusive upon Court is clearly

untenable. If it were, acts of the Executive and those of Congress could not
possibly be annulled or invalidated by courts of justice. Yet, such is not the
case. In fact, even a resolution of Congress declaring that a given person
has been elected President or Vice-President of the Philippines as provided
in the Constitution, 69 is not conclusive upon the courts. It is no
more than prima facieevidence of what is attested to by said
resolution. 70 If assailed directly in appropriate proceedings, such as an
election protest, if and when authorized by law, as it is in the Philippines,
the Court may receive evidence and declare, in accordance therewith, who
was duly elected to the office involved. 71 If prior to the creation of the
Presidential Electoral Tribunal, no such protest could be filed, it
was not because the resolution of Congress declaring who had been
elected President or Vice-President was conclusive upon courts of justice,
but because there was no law permitting the filing of such protest and
declaring what court or body would hear and decide the same. So, too, a
declaration to the effect that a given amendment to the Constitution or
revised or new Constitution has been ratified by a majority of the votes
cast therefor, may be duly assailedin court and be the object of judicial
inquiry, in direct proceedings therefor such as the cases at bar and
the issue raised therein may and should be decided in accordance with the
evidence presented.
In Bott v. Wartz, 73 the Court reviewed the statement of results of the

election made by the canvassing board, in order that the true results could
be judicially determined. And so did the court in Rice v. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive"
charge of the Commission on Elections, "the enforcement and
administration
of
all
laws
relative
to
the
conduct
of
elections," independently of the Executive, and there is not even a
certification by the Commission in support of the alleged results of the
citizens' assemblies relied upon in Proclamation No. 1102 apart from the
fact that on January 17, 1973 neither the alleged president of the
Federation of Provincial or City Barangays nor the Department of Local
Governments had certified to the President the alleged result of the
citizens' assemblies all over the Philippines it follows necessarily that,
from a constitutional and legal viewpoint, Proclamation No. 1102
is not even prima facie evidence of the alleged ratification of the proposed
Constitution.
The case of In re McConaughy 72 is squarely in point. "As the Constitution

stood from the organization of the state" of Minnessota "all taxes
were required to be raised under the system known as the 'general
property tax.' Dissatisfaction with the results of this method and the
development of more scientific and satisfactory methods of raising revenue
induced the Legislature to submit to the people an amendment to the
Constitution which provided merely that taxes shall be uniform upon the
same class of subjects. This proposed amendment was submitted at the
general election held in November, 1906, and in due time it
was certified by the state canvassing board and proclaimed by the
Governor as having been legally adopted. Acting upon the assumption that
the amendment had become a part of the Constitution, the Legislature
enacted statutes providing for a State Tax Commission and a mortgage
registry tax, and the latter statute, upon the same theory, was held
Referring particularly to the cases before Us, it will be noted that, as

pointed out in the discussion of the preceding topic, the new or revised
Constitution
proposed
by
the
1971
Constitutional
Convention
was not ratified in accordance with the provisions of the 1935 Constitution.
In fact, it has not even been, ratified in accordance with said proposed
Constitution, the minimum age requirement therein for the exercise of the
right of suffrage beingeighteen (18) years, apart from the fact that Art. VI
of the proposed Constitution requires "secret" voting, which was not
81
observed in many, if not most, Citizens' Assemblies. Besides, both the

1935 Constitution and the proposed Constitution require a "majority of the
votes cast" in an election or plebiscite called for the ratification of an
amendment or revision of the first Constitution or the effectivity of the
proposed Constitution, and the phrase "votes cast" has been construed to
mean "votes made in writing not orally, as it was in many Citizens'
Assemblies. 75

known or announced officially. Then again, Congress was,
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165,
asserts openly that Art. XV of the Constitution has not been complied with,
and since the alleged substantial compliance with the requirements thereof
partakes of the nature of a defense set up by the other respondents in
these cases, the burden of proving such defense which, if true, should
be within their peculiar knowledge is clearly on such respondents.
Accordingly, if despite the extensive notes and documents submitted by
the parties herein, the members of the Court do not know or are not
prepared to say whether or not the majority of the people or of those who
took part in the Citizens' Assemblies have assented to the proposed
Constitution, the logical step would be to give due course to these cases,
require the respondents to file their answers, and the plaintiffs their reply,
and, thereafter, to receive the pertinent evidence and then proceed to the
determination of the issues raised thereby. Otherwise, we would be placing
upon the petitioners the burden of disproving a defense set up by the
respondents, who have not so farestablished the truth of such defense.
And, apparently, the parties in said cases entertained the same belief, for,
on December 23, 1972 four (4) days after the last hearing of said
cases 76 the President announced the postponement of the plebiscite
scheduled by Presidential Decree No. 73 to be held on January 15, 1973,
after consultation with the Commission on Elections and the leaders of
Congress, owing to doubts on the sufficiency of the time available to
translate the proposed Constitution into some local dialects and to comply
with some pre-electoral requirements, as well as to afford the people a
reasonable opportunity to be posted on the contents and implications of
said transcendental document. On January 7, 1973, General Order No. 20
was issued formally, postponing said plebiscite "until further notice." How
can said postponement be reconciled with the theory that the proceedings
in the Citizens' Assemblies scheduled to be held from January 10 to January
15, 1973, were "plebiscites," in effect, accelerated, according to the theory
of the Solicitor General, for the ratification of the proposed Constitution? If
said Assemblies were meant to be the plebiscites or elections envisaged in
Art. XV of the Constitution, what, then, was the "plebiscite" postponed by
General Order No. 20? Under these circumstances, it was only reasonable
for the people who attended such assemblies to believe that the same
were not an "election" or plebiscite for the ratification or adoption of said
proposed Constitution.
Even more important, and decisive, than the foregoing is the circumstance
that there is ample reason to believe that many, if not most, of the people
did not know that the Citizens' Assemblies were, at the time they were
held, plebiscites for the ratification or rejection of the proposed
Constitution. Hence, in Our decision in the plebiscite cases, We said, inter
alia:
open debate on the proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the

Citizens' Assemblies, namely:
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
82
[4] Do you like the plebiscite to be held later?
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in

a plebiscite for the ratification of a proposed Constitution or of a proposed
amendment thereto. Secondly, neither is the language of question No. 7
"Do you approve the new Constitution?" One approves "of" the act of
another which does not need such approval for the effectivity of said act,
which the first person, however, finds to be good, wise satisfactory. The
approval of the majority of the votes cast in plebiscite is,
however, essential for an amendment to the Constitution to be valid as
part thereof. Thirdly, if the proceedings in the Citizens' Assemblies
constituted a plebiscite question No. 8 would have been unnecessary and
improper, regardless of whether question No. 7 were answered
affirmatively or negatively. If the majority of the answers to question No. 7
were in the affirmative, the proposed Constitution would have become
effective and no other plebiscite could be held thereafter in connection
therewith, even if the majority of the answers to question No. 8 were, also,
in the affirmative. If the majority of the answers to question No. 7 were in
the negative, neither may another plebiscite be held, even if the majority
of the answers to question No. 8 were in the affirmative. In either case, not
more than one plebiscite could be held for the ratification or rejection of
the proposed Constitution. In short, the insertion of said two (2) questions
apart from the other questions adverted to above indicates strongly
that the proceedings therein did not partake of the nature of a plebiscite or
election for the ratification or rejection of the proposed Constitution.
[5] Do you like the way President Marcos is running the

affairs of the government? [Bulletin Today, January 10,
[6] Do you approve of the citizens assemblies as the base
of popular government to decide issues of national
interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify the new
Constitution?
[9] Do you want the elections to be held in November,
1973 in accordance with the provisions of the 1935
Constitution?
[10] If the elections would not be held, when do you want
the next elections to be called?
[11] Do you want martial law to continue? [Bulletin Today,
January 11, 1973]
Indeed, I can not, in good conscience, declare that the proposed

Constitution has been approved or adopted by the people in the citizens'
assemblies all over the Philippines, when it is, to my mind, a matter of
judicial knowledge that there have been no such citizens' assemblies
in many parts of Manila and suburbs, not to say, also, in other parts of the
Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated
January 15, 1973, to the Chief Executive, the former reported:
... This report includes a resumee (sic) of the activities we
undertook in effecting the referendum on the eleven
questions you wanted our people consulted on and the
Summary of Results thereof for each municipality and for
the whole province.
xxx xxx xxx
... Our initial plans and preparations, however, dealt only
on the original five questions. Consequently, when we
received an instruction on January 10 to change the
questions, we urgently suspended all scheduled Citizens
Assembly meetings on that day and called all Mayors,
Chiefs of Offices and other government officials to another
conference to discuss with them the new set of guidelines
and materials to be used.
83
On January 11, ... another instruction from the top was

received to include the original five questions among those
to be discussed and asked in the Citizens' Assembly
meetings. With this latest order, we again had to make
modifications in our instructions to all those managing and
supervising the holding of the Citizens' Assembly meetings
throughout the province. ... Aside from the coordinators we
had from the Office of the Governor, the splendid
cooperation and support extended by almost all
government officials and employees in the province,
particularly of the Department of Education, PC and PACD
personnel, provided us with enough hands to trouble shoot
and implement sudden changes in the instructions anytime
and anywhere needed. ...
If this was the situation in Bataan one of the provinces nearest to Manila
as late as January 11, 1973, one can easily imagine the predicament of
the local officials and people in the remote barrios in northern and
southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In
fact, several members of the Court, including those of their immediate
families and their household, although duly registered voters in the area of
Greater Manila, were not even notified that citizens' assemblies would be
held in the places where their respective residences were located. In the
Prohibition and Amendment case, 77 attention was called to the "duty cast
upon the court of taking judicial cognizance of anything affecting the
existence
and
validity
of
any
law
or
portion
of
the
Constitution ... ." In line with its own pronouncement in another case, the
Federal Supreme Court of the United States stressed, in Baker v.
Carr, 78 that "a court is not at liberty to shut its eyes to an obvious mistake,
when the validity of the lawdepends upon the truth of what is declared."
... As to our people, in general, their enthusiastic

participation showed their preference and readiness to
accept
this
new
method
of
government
to
people consultation in shaping up government policies.
In the light of the foregoing, I cannot see how the question under
consideration can be answered or resolved otherwise than in the negative.
V
Thus, as late as January 10, 1973, the Bataan officials had

to suspend "all scheduled Citizens' Assembly meetings ..." and call all
available officials "... to discuss with them the new set of guidelines and
materials to be used ... ." Then, "on January 11 ... another instruction from
the top was received to include the original five questions among those
be discussed and asked in the Citizens' Assembly meetings. With this latest
order, we again had to make modifications in our instructions to all those
managing and supervising holding of the Citizens' Assembly meetings
throughout province. ... As to our people, in general, their enthusiastic
participation showed their preference and readiness to accept the new
method of government to people consultation in shaping up government
policies."
Have the people acquiesced in the proposed Constitution?

It is urged that the present Government of the Philippines is now and has
been run, since January 17, 1971, under the Constitution drafted by the
1971 Constitutional Convention; that the political department of the
Government has recognized said revised Constitution; that our foreign
relations are being conducted under such new or revised Constitution; that
the Legislative Department has recognized the same; and that the people,
in general, have, by their acts or omissions, indicated their conformity
thereto.
As regards the so-called political organs of the Government, gather that
respondents refer mainly to the offices under the Executive Department. In
a sense, the latter performs some functions which, from a constitutional
viewpoint, are politics in nature, such as in recognizing a new state or
government, in accepting diplomatic representatives accredited to our
Government, and even in devising administrative means and ways to
better carry into effect. Acts of Congress which define the goals or
objectives thereof, but are either imprecise or silent on the particular
measures to be resorted to in order to achieve the said goals or delegate
the power to do so, expressly or impliedly, to the Executive. This,
notwithstanding, the political organ of a government that purports to be
republican is essentially the Congress or Legislative Department. Whatever
may be the functions allocated to the Executive Department specially
under a written, rigid Constitution with a republican system of Government
like ours the role of that Department is inherently, basically and
This communication manifestly shows: 1) that, as late a January 11, 1973,

the Bataan officials had still to discuss not put into operation means
and ways to carry out the changing instructions from the top on how to
organize the citizens' assemblies, what to do therein and even what
questions or topics to propound or touch in said assemblies; 2) that the
assemblies would involve no more than consultations or dialogues between
people and government not decisions be made by the people; and 3)
that said consultations were aimed only at "shaping up government
policies" and, hence could not, and did not, partake of the nature of a
plebiscite for the ratification or rejection of a proposed amendment of a
new or revised Constitution for the latter does not entail the formulation of
a policy of the Government, but the making of decision by the people on
the new way of life, as a nation, they wish to have, once the proposed
Constitution shall have been ratified.
84
fundamentally executive in nature to "take care that the laws be

faithfully executed," in the language of our 1935 Constitution. 79
1. The "Governor of the State in swearing fidelity to it and proclaiming it, as

directed thereby";
Consequently, I am not prepared to concede that the acts the officers and
offices of the Executive Department, in line with Proclamation No. 1102,
connote a recognition thereof o an acquiescence thereto. Whether they
recognized the proposed Constitution or acquiesce thereto or not is
something that cannot legally, much less necessarily or even normally, be
deduced from their acts in accordance therewith, because the are bound to
obey and act in conformity with the orders of the President, under whose
"control" they are, pursuant to the 1935 Constitution. They have
absolutely no other choice, specially in view of Proclamation No. 1081
placing the Philippines under Martial Law. Besides, by virtue of the very
decrees, orders and instructions issued by the President thereafter, he had
assumed all powers of Government although some question his
authority to do so and, consequently, there is hardly anything he has
done since the issuance of Proclamation No. 1102, on January 17, 1973
declaring that the Constitution proposed by the 1971 Constitutional
Convention has been ratified by the overwhelming majority of the people
that he could not do under the authority he claimed to have under
Martial Law, since September 21, 1972, except the power of supervision
over inferior courts and its personnel, which said proposed Constitution
would place under the Supreme Court, and which the President has not
ostensibly exercised, except as to some minor routine matters, which the
Department of Justice has continued to handle, this Court having preferred
to maintain the status quo in connection therewith pending final
determination of these cases, in which the effectivity of the
aforementioned Constitution is disputed.
2. The "Legislature in its formal official act adopting a joint resolution, July
15, 1902, recognizing the Constitution ordained by the Convention ...";
3. The "individual oaths of its members to support it, and by its having
been engaged for nearly a year, in legislating under it and putting its
provisions
into
operation ...";
4. The "judiciary in taking the oath prescribed thereby to support it and by
enforcing its provisions ..."; and
5. The "people in their primary capacity by peacefully accepting it and
acquiescing in it, by registering as voters under it to the extent of
thousands throughout the State, and by voting, under its provisions, at a
general election for their representatives in the Congress of the United
States."
Note that the New Constitution of Virginia, drafted by a convention whose
members were elected directly by the people, was not submitted to the
people for ratification or rejection thereof. But, it was recognized, not by
the convention itself, but by other sectors of the Government, namely, the
Governor; the Legislature not merely by individual acts of its members,
but by formal joint resolution of its two (2) chambers; by the judiciary; and
by the people, in the various ways specified above. What is more, there
was no martial law. In the present cases, none of the foregoing acts of
acquiescence was present. Worse still, there is martial law, the strict
enforcement of which was announced shortly before the alleged citizens'
assemblies. To top it all, in the Taylor case, the effectivity of the contested
amendment was not contested judicially until about one (1) year after the
amendment had been put into operation in all branches of the
Government, and complied with by the people who participated in the
elections held pursuant to the provisions of the new Constitution. In the
cases under consideration, the legality of Presidential Decree No. 73 calling
a plebiscite to be held on January 15, 1973, was impugned as early as
December 7, 1972, or five (5) weeks before the scheduled plebiscite,
whereas the validity of Proclamation No. 1102 declaring on January 17,
1973, that the proposed Constitution had been ratified despite General
Order No. 20, issued on January 7, 1972, formally and officially suspending
the plebiscite until further notice was impugned as early as January 20,
1973, when L-36142 was filed, or three (3) days after the issuance of
Proclamation No. 1102.
Then, again, a given department of the Government cannot generally be

said to have "recognized" its own acts. Recognition normally connotes the
acknowledgment by a party of the acts of another. Accordingly, when a
subordinate officer or office of the Government complies with the
commands of a superior officer or office, under whose supervision and
control he or it is, the former merely obeys the latter. Strictly speaking, and
from a legal and constitutional viewpoint, there is no act of recognition
involved therein. Indeed, the lower officer or office, if he or it acted
otherwise, would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth 80 cited by
respondents herein in support of the theory of the people's acquiescence
involved a constitution ordained in 1902 and "proclaimed by a
convention duly called by a direct vote of the people of the state to revise
and amend the Constitution of 1869. The result of the work of that
Convention has been recognized, accepted and acted upon as
the only valid Constitution of the State" by
It is further alleged that a majority of the members of our House of

Representatives and Senate have acquiesced in the new or revised
Constitution, by filing written statements opting to serve in the Ad Interim
85
Assembly established in the Transitory Provisions of said Constitution.

Individual acts of recognition by members of our legislature, as well as of
other collegiate bodies under the government, are invalid as acts of said
legislature or bodies, unless its members have performed said acts
in session duly assembled, or unless the law provides otherwise, and there
is no such law in the Philippines. This is a well-established principle of
Administrative Law and of the Law of Public Officers, and no plausible
reason has been adduced to warrant departure therefrom. 81
ratification, adoption or approval of said Proclamation No. 1102. In the

words of the Chief Executive, "martial law connotespower of the gun,
meant coercion by the military, and compulsion and intimidation." 83 The
failure to use the gun against those who comply with the orders of the
party wielding the weapon does not detract from the intimidation that
Martial Law necessarily connotes. It may reflect the good, reasonable and
wholesome attitude of the person who has the gun, either pointed at
others, without pulling the trigger, or merely kept in its holster, but not
without warning that he may or would use it if he deemed it necessary.
Still, the intimidation is there, and inaction or obedience of the people,
under these conditions, is not necessarily an act of conformity or
acquiescence. This is specially so when we consider that the masses are,
by and large,unfamiliar with the parliamentary system, the new form of
government introduced in the proposed Constitution, with the particularity
that it is not even identical to that existing in England and other parts of
the world, and that even experienced lawyers and social scientists find it
difficult to grasp the full implications of some provisions incorporated
therein.
Indeed, if the members of Congress were generally agreeable to the

proposed Constitution, why did it become necessary to padlock its
premises to prevent its meeting in session on January 22, 1973, and
thereafter as provided in the 1935 Constitution? It is true that,
theoretically, the members of Congress, if bent on discharging their
functions under said Constitution, could have met in any other place, the
building in which they perform their duties being immaterial to the legality
of their official acts. The force of this argument is, however, offset or
dissipated by the fact that, on or about December 27, 1972, immediately
after a conference between the Executive, on the one hand, and members
of Congress, on the other, some of whom expressed the wish to meet in
session on January 22, 1973, as provided in the 1935 Constitution, a Daily
Express columnist (Primitivo Mijares) attributed to Presidential Assistant
Guillermo de Vega a statement to the effect that "'certain members of the
Senate appear to be missing the point in issue' when they
reportedly insisted on taking up first the question of convening Congress."
The Daily Express of that date, 82 likewise, headlined, on its front page, a
"Senatorial Plot Against 'Martial Law Government' Disclosed". Then, in its
issue of December 29, 1972, the same paper imputed to the Executive an
appeal "to diverse groups involved in aconspiracy to undermine" his
powers" under martial law to desist from provoking a constitutional
crisis ... which may result in the exercise by me of authority I have not
exercised."
As regards the applicability to these cases of the "enrolled bill" rule, it is

well to remember that the same refers to a document certified to the
President for his action under the Constitution by the Senate
President and the Speaker of the House of Representatives, and attested to
by the Secretary of the Senate and the Secretary of the House of
Representatives, concerning legislative measures approved by the two
Houses of Congress. The argument of the Solicitor General is, roughly, this:
If the enrolled bill is entitled to full faith and credence and, to this extent, it
is conclusive upon the President and the judicial branch of the
Government, why should Proclamation No. 1102 merit less consideration
than in enrolled bill?
Before answering this question, I would like to ask the following: If, instead
of being certified by the aforementioned officers of Congress, the so-called
enrolled bill were certified by, say, the President of the Association of Sugar
Planters and/or Millers of the Philippines, and the measure in question were
a proposed legislation concerning Sugar Plantations and Mills sponsored by
said Association, which even prepared the draft of said legislation, as well
as lobbied actually for its approval, for which reason the officers of the
Association, particularly, its aforementioned president whose honesty
and integrity are unquestionable were present at the deliberations in
Congress when the same approved the proposed legislation, would the
enrolled bill rule apply thereto? Surely, the answer would have to be in the
negative. Why? Simply, because said Association President has absolutely
no official authority to perform in connection therewith, and, hence, his
certification is legally, as good as non-existent.
No matter how good the intention behind these statement may have been,
the idea implied therein was too clear anominous for any member of
Congress who thought of organizing, holding or taking part in a session of
Congress, not to get the impression that he could hardly do so without
inviting or risking the application of Martial Law to him. Under these
conditions, I do not feel justified in holding that the failure of the members
of Congress to meet since January 22, 1973, was due to their recognition,
acquiescence in or conformity with the provisions of the aforementioned
Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081,
placing the entire Philippines under Martial Law, neither am I prepared to
declare that the people's inaction as regards Proclamation No. 1102, and
their compliance with a number of Presidential orders, decrees and/or
instructions some or many of which have admittedly had salutary effects
issued subsequently thereto amounts, constitutes or attests to a
Similarly, a certification, if any, of the Secretary of the Department of Local

Governments and Community Development about the tabulated results of
the voting in the Citizens Assemblies allegedly held all over the Philippines
86
and the records do not show that any such certification, to the President
of the Philippines or to the President Federation or National Association of
presidents of Provincial Associations of presidents of municipal association
presidents of barrio or ward assemblies of citizens would not, legally and
constitutionally, be worth the paper on which it is written. Why? Because
said Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection of a
proposed amendment or revision of the Constitution and, hence, to
tabulate the results thereof. Worse still, it is the department which,
according to Article X of the Constitution, should not and must not be all
participate in said plebiscite if plebiscite there was.
Court (Justice Zaldivar) was of the opinion that the aforementioned issues
should be settled in said cases, and he, accordingly, filed an opinion
passing upon the merits thereof. On the other hand, three (3) members of
the Court Justices Barredo, Antonio and Esguerra filed separate
opinions favorable to the respondents in the plebiscite cases, Justice
Barredo holding "that the 1935 Constitution has pro tanto passed into
history and has been legitimately supplanted by the Constitution in force
by virtue of Proclamation 1102." 86 When the petitions at bar were filed, the
same three (3) members of the Court, consequently, voted for the
dismissal of said petitions. The majority of the members of the Court did
not share, however, either view, believing that the main question that
arose before the rendition of said judgment had not been sufficiently
discussed and argued as the nature and importance thereof demanded.
After citing approvingly its ruling in United States v. Sandoval, 84 the

Highest Court of the United States that courts "willnot stand
impotent before an obvious instance of a manifestly unauthorized exercise
of power." 85
The parties in the cases at bar were accordingly given every possible
opportunity to do so and to elucidate on and discuss said question. Thus,
apart from hearing the parties in oral argument for five (5) consecutive
days morning and afternoon, or a total of exactly 26 hours and 31
minutes the respective counsel filed extensive notes on their or
arguments, as well as on such additional arguments as they wished to
submit, and reply notes or memoranda, in addition to rejoinders thereto,
aside from a sizeable number of document in support of their respective
contentions, or as required by the Court. The arguments, oral and written,
submitted have been so extensive and exhaustive, and the documents
filed in support thereof so numerous and bulky, that, for all intents and
purposes, the situation is as if disregarding forms the petitions had
been given due course and the cases had been submitted for decision.
I cannot honestly say, therefore, that the people impliedly or expressly

indicated their conformity to the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about the
procedure followed in these five (5) cases. In this connection, it should be
noted that the Court has not decided whether or not to give due course to
the petitions herein or to require the respondents to answer thereto.
Instead, it has required the respondents to comment on the respective
petitions with three (3) members of the voting to dismiss them outright
and then considers comments thus submitted by the respondents as
motions to dismiss, as well as set the same for hearing. This was due to the
transcendental nature of the main issue raised, the necessity of deciding
the same with utmost dispatch, and the main defense set up by
respondents herein, namely, the alleged political nature of said issue,
placing the same, according to respondents, beyond the ambit of judicial
inquiry and determination. If this defense was sustained, the cases could
readily be dismissed; but, owing to the importance of the questions
involved, a reasoned resolution was demanded by public interest. At the
same time, respondents had cautioned against a judicial inquiry into the
merits of the issues posed on account of the magnitude of the evil
consequences, it was claimed, which would result from a decision thereon,
if adverse to the Government.
Accordingly, the majority of the members of the Court believe that they
should express their views on the aforementioned issues as if the same
were being decided on the merits, and they have done so in their individual
opinion attached hereto. Hence, the resume of the votes cast and the tenor
of the resolution, in the last pages hereof, despite the fact that technically
the Court has not, as yet, formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ
of mandamus prayed for against Gil J. Puyat and Jose Roy, President and
President Pro Tempore respectively of the Senate, it being settled in our
jurisdiction, based upon the theory of separation of powers, that the
judiciary will not issue such writ to the head of a co-equal department, like
the aforementioned officers of the Senate.
In all other respects and with regard to the other respondent in said case,
as well as in cases L-36142, L-36164, L-36236 and L-36283, my vote is that
the petitions therein should be given due course, there being more
than prima facie showing that the proposed Constitution has not been
As a matter of fact, some of those issues had been raised in the plebiscite
cases, which were dismissed as moot and academic, owing to the issuance
of Proclamation No. 1102 subsequently to the filing of said cases, although
before the rendition of judgment therein. Still one of the members of the
87
ratified in accordance with Article XV of the 1935 Constitution, either

strictly, substantially, or has been acquiesced in by the people or majority
thereof; that said proposed Constitution is not in force and effect; and that
the 1935 Constitution is still the Fundamental Law of the Land, without
prejudice to the submission of said proposed Constitution to the people at
a plebiscite for its ratification or rejection in accordance with Articles V, X
and XV of the 1935 Constitution and the provisions of the Revised Election
Code in force at the time of such plebiscite.
2. Has the Constitution proposed by the 1971 Constitutional Convention

been ratified validly (with substantial, if not strict, compliance)
conformably to the applicable constitutional and statutory provisions?
3. Has the aforementioned proposed Constitution acquiesced in (with or
without valid ratification) by the people?
4. Are petitioners entitled to relief? and
Perhaps others would feel that my position in these cases overlooks what
they might consider to be the demands of "judicial statesmanship,"
whatever may be the meaning of such phrase. I am aware of this
possibility,
if
not
probability;
but
"judicial
statesmanship,"
though consistent with Rule of Law, cannot prevail over the latter. Among
consistent ends or consistent values, there always is a hierarchy, a rule of
priority.
5. Is the aforementioned proposed Constitution in force?

The results of the voting, premised on the individual views expressed by
the members of the Court in their respect opinions and/or concurrences,
are as follows:
1. On the first issue involving the political-question doctrine Justices
Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6)
members of the Court, hold that the issue of the validity of Proclamation
No. 1102 presents a justiciable and non-political question. Justices
Makalintal and Castro did not vote squarely on this question, but, only
inferentially, in their discussion of the second question. Justice Barredo
qualified his vote, stating that "inasmuch as it is claimed there has been
approval by the people, the Court may inquire into the question of whether
or not there has actually been such an approval, and, in the affirmative,
the Court should keep hands-off out of respect to the people's will, but, in
negative, the Court may determine from both factual and legal angles
whether or not Article XV of the 1935 Constitution been complied with."
Justices Makasiar, Antonio, Esguerra, or three (3) members of the Court
hold that the issue is political and "beyond the ambit of judicial inquiry."
We must realize that the New Society has many achievements which would
have been very difficult, if not impossible, to accomplish under the old
dispensation. But, in and for the judiciary, statesmanship should not prevail
over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law
and faithful adherence thereto are basic, fundamental and essential parts
of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of their
individual opinions and/or concurrences as appended hereto, the writer will
now make, with the concurrence of his colleagues, a resume or summary of
the votes cast by each of them.
2. On the second question of validity of the ratification, Justices Makalintal,

Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of
the Court also hold that the Constitution proposed by the 1971
Constitutional Convention was not validly ratified in accordance with Article
XV, section 1 of the 1935 Constitution, which provides only one way for
ratification, i.e., "in an election or plebiscite held in accordance with law
and participated in only by qualified and duly registered voters. 87
It should be stated that by virtue of the various approaches and views

expressed during the deliberations, it was agreed to synthesize the basic
issues at bar in broad general terms in five questions for purposes of taking
the votes. It was further agreed of course that each member of the Court
would expound in his individual opinion and/or concurrence his own
approach to the stated issues and deal with them and state (or not) his
opinion thereon singly or jointly and with such priority, qualifications and
modifications as he may deem proper, as well as discuss thereon other
related issues which he may consider vital and relevant to the cases at bar.
Justice Barredo qualified his vote, stating that "(A)s to whether or not the
1973 Constitution has been validly ratified pursuant to Article XV, I still
maintain that in the light of traditional concepts regarding the meaning
and intent of said Article, the referendum in the Citizens' Assemblies,
specially in the manner the votes therein were cast, reported and
canvassed, falls short of the requirements thereof. In view, however, of the
fact that I have no means of refusing to recognize as a judge that factually
there was voting and that the majority of the votes were for considering as
approved the 1973 Constitution without the necessity of the usual form of
The five questions thus agreed upon as reflecting the basic issues herein
involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or
political and therefore non-justiciable, question?
88
plebiscite followed in past ratifications, I am constrained to hold that, in the

political sense, if not in the orthodox legal sense, the people may be
deemed to have cast their favorable votes in the belief that in doing so
they did the part required of them by Article XV, hence, it may be said that
in its political aspect, which is what counts most, after all, said Article has
been substantially complied with, and, in effect, the 1973 Constitution has
been constitutionally ratified."
Four (4) members of the Court, namely, Justices Zaldivar, Fernando,

Teehankee and myself voted to deny respondents' motion to dismiss and to
give due course to the petitions.
5. On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices Barredo,
Makasiar, Antonio and Esguerra hold that it is in force by
virtue of the people's acceptance thereof;
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court
hold that under their view there has been in effect substantial compliance
with the constitutional requirements for valid ratification.
Four (4) members of the Court, namely, Justices Makalintal,

Castro, Fernando and Teehankee cast no vote thereon on
the premise stated in their votes on the third question that
they could not state with judicial certainty whether the
people have accepted or not accepted the Constitution;
and
3. On the third question of acquiescence by the Filipino people in the

aforementioned proposed Constitution, no majority vote has been reached
by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that "the people have already accepted the 1973
Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and

myself voted that the Constitution proposed by the 1971
Constitutional Convention is not in force;
Two (2) members of the Court, namely, Justice Zaldivar and myself hold
that there can be no free expression, and there has even been no
expression, by the people qualified to vote all over the Philippines, of their
acceptance or repudiation of the proposed Constitution under Martial Law.
Justice Fernando states that "(I)f it is conceded that the doctrine stated in
some American decisions to the effect that independently of the validity of
the ratification, a new Constitution once accepted acquiesced in by the
people must be accorded recognition by the Court, I am not at this stage
prepared to state that such doctrine calls for application in view of the
shortness of time that has elapsed and the difficulty of ascertaining what is
the mind of the people in the absence of the freedom of debate that is a
concomitant feature of martial law." 88
with the result that there are not enough votes to declare that the new
Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four
(4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and
Teehankee, all the aforementioned cases are hereby dismissed. This being
the vote of the majority, there is no further judicial obstacle to the new
Constitution being considered in force and effect.
It is so ordered.
Three (3) members of the Court express their lack of knowledge and/or
competence to rule on the question. Justices Makalintal and Castro are
joined by Justice Teehankee in their statement that "Under a regime of
martial law, with the free expression of opinions through the usual media
vehicle restricted, (they) have no means of knowing, to the point of judicial
certainty, whether the people have accepted the Constitution." 89
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

ANNEX A
PERTINENT PORTIONS
4. On the fourth question of relief, six (6) members of the Court, namely,
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted
to DISMISS the petition. Justice Makalintal and Castro so voted on the
strength of their view that "(T)he effectivity of the said Constitution, in the
final analysis, is the basic and ultimate question posed by these cases to
resolve which considerations other than judicial, an therefore beyond the
competence of this Court, 90 are relevant and unavoidable." 91
OF THE
MINNESSOTA SUPREME COURT
DECISION
89
ON THE CASE
a proposed amendment to a vote of the people, it has been repeatedly

held, by courts of the highest respectability, that it is within the power of
the judiciary to inquire into the question, even in a collateral proceeding. ...
It is to be noted that under section 1 of article 20 of the Constitution of the
state no amendment can become a part of the Constitution until ratified by
a vote of the people. One prerequisite is equally as essential as the other.
The amendment must first receive the requisite majority in the Legislature,
and afterwards be adopted by the requisite vote. ... It is the fact of a
majority vote which makes the amendment a part of the Constitution."
IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have almost
uniformly exercised the authority to determine the validity of the proposal,
submission, or ratification of constitutional amendments. It has
been judicially determined whether a proposed amendment received the
constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v.
Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl.
744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6
L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779;
Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re
Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.]
134 Fed. 423); whether a proposed amendment is a single amendment,
within the constitutional requirement that every amendment must be
separately submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert
v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis.
318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722;
Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo.
369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87
Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149);
whether the failure to enter the resolution of submission upon the
legislative journals invalidates the amendment (Koehler v. Hill, 60 Iowa,
543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11
Pac. 3; West v. State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22
Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St.
Rep. 895); whether the description of the amendment and the form of the
ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v.
Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149; Murphy Chair Co. v.
Attorney General [Mich.] 112 N.W. 127); whether the method of submission
sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164
Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a
notice relative to it is sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50
L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the
submission may be well by resolution as by a legislative act approved by
the executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568;
Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward Lesueur, 132 Mo.
410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732;
State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what election the
amendment be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
"In considering the cases it is necessary to note whether in the particular

case the court was called upon to determine between rival governments,
or whether the Legislature, or some board or official, had legally performed
the duty imposed by the Constitution or statutes. In re State v. McBride, 4
Mo. 303, 29 Am. Dec. 636, it was held that the General Assembly, under
the power granted by the Constitution, could change the Constitution only
in the manner prescribed by it, and that it was the duty of the court to
determine whether all prerequisites had been complied with. In Collier v.
Frierson, 24 Ala. 100, it was held that a Constitution can be changes only
by the peoplein convention or in a mode described by the
Constitution itself, and that if the latter mode is adopted every requisite of
the Constitution must be observed. 'It has been said," says the court, "that
certain acts are to be done, certain requisitions are to be observed, before
a change can be effected; but to what purpose are these acts required, or
these requisitions enjoined, if the Legislature or any other department of
the government can dispense with them. To do so would be to violate the
instrument which they are sworn to support; and every principle of public
law and sound constitutional policy requires the court to pronounce
against every amendment which is shown not to have been made in
accordance with the rules prescribed by the fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may
form an original Constitution, or abrogate an old one and form a new one,
at any time, without any political restriction, except the Constitution of the
United States, but if they undertake to add an amendment, by the
authority of legislation to a Constitution already in existence, they can do it
only by the method pointed out by the Constitution to which the
amendment is added. The power to amend a Constitution by legislative
action does not confer the power to break it, any more than it confers the
power to legislate on any other subject contrary to its prohibitions.' So,
in State v. Timme, 54 Wis. 318, 11 N.W. 785, it was held
that no amendments can be made to the Constitution of the state without
a compliance with the provisions thereof, both in the passage of such
amendment by the Legislature and the manner of submitting it to the
people. The courts have not all agreed as to the strictness of compliance
which should be required.
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said:
"It is contended that the determination of the question whether an
amendment to the Constitution has been carried involves the exercise of
political, and not judicial, power. If this be so, it follows that the
promulgation of any purported amendment by the executive or any
executive department is final, and that the action cannot be questioned by
the judiciary; but, with reference to the conditions precedent to submitting
"In the Prohibition and Amendment Case, 24 Kan. 700, the

court determined judicially whether an amendment to the Constitution had
90
been legally adopted. After approving the statement quoted from Collier v.
Frierson, supra, that 'we entertain no doubt that, to change the
Constitution in an other mode than by a convention, every requisite which
is demanded by the instrument itself must be observed, and the omission
of any one is fatal to the amendment,' the court held that, 'as substance of
right is grander and more potent than methods of form,' there had been
substantial compliance with the constitutional requirement that a proposed
amendment to the Constitution must be entered at length on the
legislative journal. It appears that the joint resolution making submission
simply provided that a proposition should be submitted to the electors at
the general election of 1880. It did not declare that the machinery of the
general election law should control, or that any particular officers or board
would receive, count, or canvass the votes cast. But the existing election
machinery was adequate, and the votes were received, counted, and
canvassed, and the result declared as fully as though it had been in terms
so ordered. These methods had been followed in the adoption of previous
amendments, and was held that, conceding the irregularity of the
proceedings the Legislature and the doubtful scope of the provisions for
the election, yet in view of the very uncertainty of such provision the past
legislative
history of
similar
propositions,
the universal
prior
acquiescence in the same forms of procedure and the popular
and unchallenged acceptance of the legal pendency before the people of
the question of the amendment for decision, and in view of the duty cast
upon the court taking judicial knowledge of anything affecting the
existence and validity of any law or portion of the Constitution, it must be
adjudged that the proposed amendment became part of the Constitution.
The effect was to hold that a provision of the Constitution requiring the
proposed amendment to be entered in full on the journals was directory,
and not mandatory. This liberal view was approved in State v. Winnett
(Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369,
Pac. 167, 102 Am. St. Rep. 34. But it has not been universally accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in
commenting upon the Kansas case said: 'The reasoning by which the
learned court reached the conclusion it did is not based on any sound legal
principles, butcontrary to them. Neither the argument nor the conclusion
can command our assent or approval. The argument isillogical, and based
on premises which are without any sound foundation, and rests merely on
assumption.' See, also, the well-considered case of Kadderly v. Portland, 44
Or. 118, 74 Pac. 710, 75 Pac. 222. All these casesconcede the jurisdiction
of the court to determine whether, in submitting a proposed amendment to
the people, the Legislature legally observed the constitutional provisions
as to the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac.
424, 25 L.R.A. 312, the court, at the instance of a citizen and a taxpayer,
restrained the Secretary of State from taking steps to submit to the people
a proposed amendment to the Constitution agreed to by the Legislature on
the ground that the Legislature had not acted in conformity with the
Constitution and that the proposed amendment was of such a character
that it could not properly become a part of the Constitution. The Supreme
Court of Colorado, in People v. Sours, supra, refused to exercise this
authority.
"The entire question received elaborate consideration in Koehler v. Hill, 60
Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, which concededly
had been adopted by the people, had not, before its submission, been
entered in full upon the legislative journals, as required by the Constitution,
and it was held that this was a material variance in both form and
substance from the constitutional requirements, and that the amendment
did not, therefore, become a part of the Constitution. As to the claim that
the question was political, and not judicial, it was said that, while it is not
competent for courts to inquire into the validity of the Constitution and the
form of government under which they themselves exist, and from which
they derive their powers, yet, where the existing Constitution prescribes a
method for its own amendment, an amendment thereto, to be valid, must
be adopted in strict conformity to that method; and it is the duty of the
courts in a proper case, when an amendment does not relate to their own
power or functions, to inquire whether, in the adoption of the
amendment, the provisions of the existing Constitution have been
observed, and, if not, to declare the amendment invalid and of no force.
This case was followed in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. 76, the question whether a proposed
amendment to the Constitution had been legally adopted was treated as
a judicial question. By the Constitution a proposed amendment was
required to be approved by Legislatures before its submission to the
people. In this instance a bill was passed which contained 17 amendments.
The next Legislature rejected 9 and adopted 8 of the amendments, and
submitted them to the people.The majority of the people voted for their
adoption; but it was contended that the Constitution contemplated and
required that the same bill and the same amendments, without change,
should approved by both Legislatures, and that it did not follow because
91
the second Legislature adopted separately 8 out of 17 amendments

adopted by the first Legislature, it would have adopted the 17, or any of
them, if they had been voted upon the second in the form adopted by the
first body. The substance of the contention was that there had not been a
concurrence of the twoLegislatures on the same amendments, according to
the letter and spirit of the Constitution. The court held that the power of
the Legislature in submitting amendments could not be distinguished from
the powers of convention, and that, as the people had spoken and ratified
the amendments, they became a part of the Constitution.
according to the requirements of the Constitution, and whether the

proposition was in fact adopted, were all judicial, and not political,
questions. 'We do not,' said Chief Justice Whitfield, 'seek a jurisdiction not
imposed upon us by the Constitution. We could not, if we would, escape
the exercise of that jurisdiction which the Constitution has imposed upon
us. In the particular instance in which we are now acting, our duty to know
what the Constitution of the state is, and in accordance with our oaths to
support and maintain it in its integrity, imposed on us a most difficult and
embarrassing duty, one which we have not sought, but one which, like all
others, must be discharged."
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that
prior to 1876 a proposed amendment to Constitution could not be
submitted to the people at any other than a general election; but, as the
amendment under consideration had been submitted after the Constitution
been changed, it had been legally submitted and adopted.
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was
held that it was the duty of the judicial department of the government to
determine whether the legislative department or its officers had observed
the constitutional injunctions in attempting to amend the Constitution, and
to annul their acts if they had not done so. The case is an interesting and
well-considered one. The Constitution provided the manner in which
proposed amendments should be submitted to the people, but did not
provide a method for canvassing the votes. The Legislature having agreed
to certain proposed amendments, passed an act for submitting the same to
the people. This statute provided for the transmission to the Secretary of
State of certificate showing the result of the voting throughout the state,
and made it the duty of the Governor at the designated time summon four
or more Senators, who, with the Governor, should constitute a board of
state canvassers to canvass and estimate the votes for and against each
amendment. This board was to determine and declare which of the
proposed amendments had been adopted and to deliver a statement of the
results to the Secretary of State, and "any proposed amendment, which by
said certificate and determination of the board of canvassers shall appear
to have received in its favor the majority of all the votes cast in the state
for and against said proposed amendment, shall from the time of filing
such certificate be and become an amendment to and a part of the
Constitution of the state; and it shall be the duty of the Governor of the
state forthwith, after such a determination, to issue a proclamation
declaring which of the said proposed amendments have been adopted by
the people." This board was required to file a statement of the result of the
election, and the Governor to issue his proclamation declaring that the
amendment had been adopted and become a part of the Constitution. At
the instance of a taxpayer the Supreme Court allowed a writ of certiorari to
remove into the court for review the statement of the results of the
election made by the canvassing board, in order that it might be judicially
determined whether on the facts shown in that statement the board had
legally determined that the proposed amendment had been adopted. The
Supreme Court decided that the concurrence of the board of state
canvassers and the executive department of the government in their
respective official functions placed the subject-matter beyond the
cognizance of the judicial department of the state. The Court of Appeals,
after a full review of the authorities, reversed this decision, and held that
the questions were of a judicial nature, and properly determinable by the
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an
amendment to the Constitution had been legally submitted and adopted by
the people was held to be judicial, and not political, in its nature. The
amendment under consideration changed the Constitution by providing for
an elective, instead of an appointive, judiciary. It was contented that the
amendments had been improperly submitted and adopted by a majority of
the qualified voters voting at election, as required by the Constitution. The
law did direct how the result of the election should be determined. The
Legislature by joint resolution recited that the election had been duly held
throughout the state, and, as it appeared from the returns made to the
Secretary of State, that 21,169 votes were cast in favor of, and 8,643 votes
against, the amendment, it resolved 'that said amendment be, and hereby
is, inserted into the Constitution of the state of Mississippi as a part of the
Constitution.' In fact, the amendment was not submitted in the
manner prescribed by the Constitution, and it did not receive a majority of
all the qualified voters voting at the election. It was argued that the rules
prescribed by the Constitution "are all for the guidance of the Legislature,
and from the very nature of the thing the Legislature must be
the exclusive judge of all questions to be measured or determined by these
rules. Whether the question be political, and certainly a legislative one, or
judicial, to be determined by the courts, this section of rules, not only of
procedure, but of final judgment as well, confides to the separate
magistracy of the legislative department full power to hear, consider, and
adjudge that question. The Legislature puts the question to
the qualified electors.
The qualified electors
answer
back
to
the
Legislature. "If it shall appear" to the Legislature that its question has been
answered in the affirmative, the amendment is inserted and made a part of
the Constitution. The Governor and the courts have no authority to speak
at any stage of the proceedings between the sovereign and the
Legislature, and when the matter is thus concluded it is closed, and the
judiciary is as powerless to interfere as the executive.' But it was held that
the question whether the proposition submitted to the voters constituted
one, or more than one, amendment, whether the submission was
92
court on their merits. Mr. Justice Dixon, after stating the facts, said: 'It thus
becomes manifest that there was present in the Supreme Court, and is now
pending in this court, every element tending to maintain jurisdiction over
the subject-matter, unless it be true, as insisted, that the judicial
department of the government has not the right to consider whether the
legislative department and its agencies have observed constitutional
injunctions in attempting to amend the Constitution, and to annul their
acts in case that they have not done so. That such a proposition is not true
seems to be indicated by the whole history of jurisprudence in this country.'
The court, after considering the case on the merits, held that the proper
conclusion had been drawn therefrom, and that the amendment in
question was legally submitted and adopted.
WHEREAS, one of the questions persistently mention refers to the

ratification of the Constitution proposed by the 1971 Constitutional
Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people
believe that the submission of the proposed Constitution to the Citizens
Assemblies or Barangays should taken as a plebiscite in itself in view of the
fact that freedom of debate has always been limited to the leadership in
political, economic and social fields, and that it is now necessary to bring
this down to the level of the people themselves through the Barangays or
Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers in me vested by the Constitution, do hereby order
that important national issues shall from time to time be referred to the
Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86-A dated January 5, 1973 an that the initial
referendum shall include the matter of ratification of the Constitution
proposed by the 1971 Constitutional Convention.
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the
identical question which we have under consideration. In reference to the
contention that the Constitution intended to delegate to the Speaker of the
House of Representatives the power to determine whether an amendment
had been adopted, and that the question was political, and not judicial, the
court observed: "The argument has often been made in similar cases to the
courts, and it is found in many dissenting opinions; but, with probably
a few exceptions, it is not found in any prevailing opinion."
The Secretary of the Department of Local Government and Community

Development shall insure the implementation of this Order.
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that
the constitutional requirement of publication of a proposed constitutional
provision for three months prior to the election at which it is to be
submitted to the people is mandatory and that noncompliance therewith
renders the adoption of an amendment of no effect."
Done in the City of Manila, this 7th day of January in the year of Our Lord,
nineteen hundred and seventy-three.
(SG
D.)
FER
DIN
AND
E.
ANNEX B
MALACAANG
MANILA
SUPREME COURT
Manila
PRESIDENTIAL DECREE NO. 86-B

Defining Further the Role of Barangays (Citizens Assemblies)
EN BANC
WHEREAS, since their creation pursuant to Presidential Decree No. 86
dated December 31, 1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit to them for resolution
important national issues;
G.R. No. L-44640 October 12, 1976

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
93
HONORABLE COMMISSION ON ELECTIONS and HONORABLE

NATIONAL TREASURER, respondents.
On the same date of September 22, 1976, the President issued Presidential
Decree No. 1033, stating the questions to be submitted to the people in
the referendum-plebiscite on October 16, 1976. The Decree recites in its
"whereas" clauses that the people's continued opposition to the convening
of the National Assembly evinces their desire to have such body abolished
and replaced thru a constitutional amendment, providing for a legislative
body, which will be submitted directly to the people in the referendumplebiscite of October 16.
G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
The questions ask, to wit:
G.R. No. L-44714. October 12,1976
(1) Do you want martial law to be continued?
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO

SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
(2) Whether or not you want martial law to be continued, do you approve
the following amendments to the Constitution? For the purpose of the
second question, the referendum shall have the effect of a plebiscite within
the contemplation of Section 2 of Article XVI of the Constitution.
MARTIN, J,:
PROPOSED AMENDMENTS:
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.
1. There shall be, in lieu of the interim National Assembly, an interim

Batasang Pambansa. Members of the interim Batasang Pambansa which
shall not be more than 120, unless otherwise provided by law, shall include
the incumbent President of the Philippines, representatives elected from
the different regions of the nation, those who shall not be less than
eighteen years of age elected by their respective sectors, and those
chosen by the incumbent President from the members of the Cabinet.
Regional representatives shall be apportioned among the regions in
accordance with the number of their respective inhabitants and on the
basis of a uniform and progressive ratio while the sectors shall be
determined by law. The number of representatives from each region or
sector and the, manner of their election shall be prescribed and regulated
by law.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential

Decree No. 991 calling for a national referendum on October 16, 1976 for
the Citizens Assemblies ("barangays") to resolve, among other things, the
issues of martial law, the I . assembly, its replacement, the powers of such
replacement, the period of its existence, the length of the period for tile
exercise by the President of his present powers.1
Twenty days after or on September 22, 1976, the President issued another
related decree, Presidential Decree No. 1031, amending the previous
Presidential Decree No. 991, by declaring the provisions of presidential
Decree No. 229 providing for the manner of voting and canvass of votes in
"barangays" (Citizens Assemblies) applicable to the national referendumplebiscite of October 16, 1976. Quite relevantly, Presidential Decree No.
1031 repealed Section 4, of Presidential Decree No. 991, the full text of
which (Section 4) is quoted in the footnote below. 2
2. The interim Batasang Pambansa shall have the same powers and its
members shall have the same functions, responsibilities, rights, privileges,
and disqualifications as the interim National Assembly and the regular
National Assembly and the members thereof. However, it shall not exercise
the power provided in Article VIII, Section 14(l) of the Constitution.
3. The incumbent President of the Philippines shall, within 30 days from the
election and selection of the members, convene the interim Batasang
Pambansa and preside over its sessions until the Speaker shall have been
elected. The incumbent President of the Philippines shall be the Prime
Minister and he shall continue to exercise all his powers even after the
interim Batasang Pambansa is organized and ready to discharge its
functions and likewise he shall continue to exercise his powers and
94
prerogatives under the nineteen hundred and thirty five. Constitution and
the powers vested in the President and the Prime Minister under this
Constitution.
control, hold, and conduct the Referendum-Plebiscite scheduled on October

16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no
grant to the incumbent President to exercise the constituent power to
propose amendments to the new Constitution. As a consequence, the
Referendum-Plebiscite on October 16 has no constitutional or legal basis.
4. The President (Prime Minister) and his Cabinet shall exercise all the
powers and functions, and discharge the responsibilities of the regular
President (Prime Minister) and his Cabinet, and shall be subject only to
such disqualifications as the President (Prime Minister) may prescribe. The
President (Prime Minister) if he so desires may appoint a Deputy Prime
Minister or as many Deputy Prime Ministers as he may deem necessary.
On October 5, 1976, the Solicitor General filed the comment for respondent
Commission on Elections, The Solicitor General principally maintains that
petitioners have no standing to sue; the issue raised is political in nature,
beyond judicial cognizance of this Court; at this state of the transition
period, only the incumbent President has the authority to exercise
constituent power; the referendum-plebiscite is a step towards
normalization.
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.
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
7. The barangays and sanggunians shall continue as presently constituted

but their functions, powers, and composition may be altered by law.
Still another petition for Prohibition with Preliminary Injunction was filed on
October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO
SALAPANTAN, docketed as L- 44714, to restrain the implementation of
Presidential Decrees relative to the forthcoming Referendum-Plebiscite of
October 16.
Referenda conducted thru the barangays and under the Supervision of the
Commission on Elections may be called at any time the government deems
it necessary to ascertain the will of the people regarding any important
matter whether of national or local interest.
These last petitioners argue that even granting him legislative powers
under Martial Law, the incumbent President cannot act as a constituent
assembly to propose amendments to the Constitution; a referendumplebiscite is untenable under the Constitutions of 1935 and 1973; the
submission of the proposed amendments in such a short period of time for
deliberation renders the plebiscite a nullity; to lift Martial Law, the
President need not consult the people via referendum; and allowing
15-.year olds to vote would amount to an amendment of the Constitution,
which confines the right of suffrage to those citizens of the Philippines 18
years of age and above.
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.
We find the petitions in the three entitled cases to be devoid of merit.

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,
I
Justiciability of question raised.
95
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.
Constitution itself The amending, like all other powers organized in the
Constitution, is in form a delegated and hence a limited power, so that the
Supreme Court is vested with that authorities to determine whether that
power has been discharged within its limits.
Political questions are neatly associated with the wisdom, of the legality of
a particular act. Where the vortex of the controversy refers to the legality
or validity of the contested act, that matter is definitely justiciable or nonpolitical. What is in the heels of the Court is not the wisdom of the act of
the incumbent President in proposing amendments to the Constitution, but
his constitutional authority to perform such act or to assume the power of
a constituent assembly. Whether the amending process confers on the
President that power to propose amendments is therefore a downright
justiciable question. Should the contrary be found, the actuation of the
President would merely be abrutum fulmen. If the Constitution provides
how it may be amended, the judiciary as the interpreter of that
Constitution, can declare whether the procedure followed or the authority
assumed was valid or not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory
of non-justiciability, that the question of the President's authority to
propose amendments and the regularity of the procedure adopted for
submission of the proposal to the people ultimately lie in the judgment of
the A clear Descartes fallacy of vicious circle. Is it not that the people
themselves, by their sovereign act, provided for the authority and
procedure for the amending process when they ratified the present
Constitution in 1973? Whether, therefore, the constitutional provision has
been followed or not is the proper subject of inquiry, not by the people
themselves of course who exercise no power of judicial but by the Supreme
Court in whom the people themselves vested that power, a power which
includes the competence to determine whether the constitutional norms
for amendments have been observed or not. And, this inquiry must be
done a prior not a posterior i.e., before the submission to and ratification
by the people.
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. 8This is especially true in cases where the power of the
Presidency to initiate the of normally exercised by the legislature, is
seriously doubted. Under the terms of the 1973 Constitution, the power to
propose amendments o the constitution resides in the interim National
Assembly in the period of transition (See. 15, Transitory provisions). After
that period, and the regular National Assembly in its active session, the
power to propose amendments becomes ipso facto the prerogative of the
regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973
constitution). The normal course has not been followed. Rather than calling
the National Assembly to constitute itself into a constituent assembly the
incumbent President undertook the proposal of amendments and
submitted the proposed amendments thru Presidential Decree 1033 to the
people in a Referendum-Plebiscite on October 16. Unavoidably, the
regularity regularity of the procedure for amendments, written in lambent
words in the very Constitution sought to be amended, raises a contestable
issue. The implementing Presidential Decree Nos. 991, 1031, and 1033,
which commonly purport to have the force and effect of legislation are
assailed as invalid, thus the issue of the validity of said Decrees is plainly a
justiciable one, within the competence of this Court to pass upon. Section 2
(2), Article X of the new Constitution provides: "All cases involving the
constitutionality of a treaty, executive agreement, or law may shall be
heard and decided by the Supreme Court en banc and no treaty, executive
agreement, or law may be declared unconstitutional without the
concurrence of at least ten Members. ..." The Supreme Court has the last
word in the construction not only of treaties and statutes, but also of the
Indeed, the precedents evolved by the Court or, prior constitutional cases
underline the preference of the Court's majority to treat such issue of
Presidential role in the amending process as one of non-political
impression. In the Plebiscite Cases, 11 the contention of the Solicitor
General that the issue on the legality of Presidential Decree No. 73
"submitting to the Pilipino people (on January 15, 1973) for ratification or
rejection the Constitution of the Republic of the Philippines proposed by the
1971 Constitutional Convention and appropriating fund s therefore "is a
political one, was rejected and the Court unanimously considered the issue
as justiciable in nature. Subsequently in the Ratification Cases 12involving
the issue of whether or not the validity of Presidential Proclamation No.
1102. announcing the Ratification by the Filipino people of the constitution
proposed by the 1971 Constitutional Convention," partakes of the nature of
a political question, the affirmative stand of' the Solicitor General was
96
dismissed, the Court ruled that the question raised is justiciable. Chief
Justice Concepcion, expressing the majority view, said, Thus, in the
aforementioned plebiscite cases, We rejected the theory of the
respondents therein that the question whether Presidential Decree No. 73
calling a plebiscite to be held on January 15, 1973, for the ratification or
political nature, and We unanimously declared that the issue was a
justiciable one. With Identical unanimity. We overruled the respondent's
contention in the 1971 habeas corpus cases, questioning Our authority to
determine the constitutional sufficiency of the factual bases of the
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."
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 twothirds of all the Members of the National Assembly. However the calling of
a Constitutional Convention may be submitted to the electorate in an
election voted upon by a majority vote of all the members of the National
Assembly. In times of transition, amendments may be proposed by a
majority vote of all the Members of the National Assembly upon special call
by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the
incumbent President is vested with that prerogative of discretion as to
when he shall initially convene the interim National Assembly. Speaking for
the majority opinion in that case, Justice Makasiar said: "The Constitutional
Convention intended to leave to the President the determination of the
time when he shall initially convene the interim National Assembly,
consistent with the prevailing conditions of peace and order in the
country." Concurring, Justice Fernandez, himself a member of that
Constitutional Convention, revealed: "(W)hen the Delegates to the
Constitutional Convention voted on the Transitory Provisions, they were
aware of the fact that under the same, the incumbent President was given
the discretion as to when he could convene the interim National Assembly;
it was so stated plainly by the sponsor, Delegate Yaneza; as a matter of
fact, the proposal that it be convened 'immediately', made by Delegate
Pimentel (V) was rejected. The President's decision to defer the convening
of the interim National Assembly soon found support from the people
themselves. In the plebiscite of January 10-15, 1973, at which the
ratification of the 1973 Constitution was submitted, the people voted
against the convening of the interim National Assembly. In the referendum
of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated their
sovereign will to withhold the convening of the interim National Assembly.
Again, in the referendum of February 27, 1975, the proposed question of
whether the interim National Assembly shall be initially convened was
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this
Constitution may be proposed by the National Assembly
upon a vote of three-fourths of all its Members, or by a
constitutional convention. (2) The National Assembly may,
by a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote of all its
Members, submit the question of calling such a convention
to the electorate in an election.
SECTION 2. Any amendment to, or revision of, this
Constitution shall be valid when ratified by a majority of
the votes cast in a plebiscite which shall be held not later
97
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.
temporary union of executive, legislative, and judicial power in the hands

of one man. The more complete the separation of powers in a
constitutional system, the more difficult and yet the more necessary will be
their fusion in time of crisis. This is evident in a comparison of the crisis
potentialities of the cabinet and presidential systems of government. In the
former the all-important harmony of legislature and executive is taken for
granted; in the latter it is neither guaranteed nor to be to confidently
expected. As a result, cabinet is more easily established and more
trustworthy than presidential dictatorship. The power of the state in crisis
must not only be concentrated and expanded; it must also be freed from
the normal system of constitutional and legal limitations. 21 John Locke, on
the other hand, claims for the executive in its own right a broad discretion
capable even of setting aside the ordinary laws in the meeting of special
exigencies for which the legislative power had not provided. 22 The rationale
behind such broad emergency powers of the Executive is the release of the
government from "the paralysis of constitutional restrains" so that the
crisis may be ended and normal times restored.
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
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.
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
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
98
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-inChief 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
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.
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally
consigned to the interim National Assembly during the transition period.
However, the initial convening of that Assembly is a matter fully addressed
to the judgment of the incumbent President. And, in the exercise of that
judgment, the President opted to defer convening of that body in utter
recognition of the people's preference. Likewise, in the period of transition,
the power to propose amendments to the Constitution lies in the interim
National Assembly upon special call by the President (See. 15 of the
Transitory Provisions). Again, harking to the dictates of the sovereign will,
the President decided not to call the interim National Assembly. Would it
then be within the bounds of the Constitution and of law for the President
to assume that constituent power of the interim Assembly vis-a-vis his
assumption of that body's legislative functions? The answer is yes. If the
President has been legitimately discharging the legislative functions of the
interim Assembly, there is no reason why he cannot validly discharge the
function of that Assembly to propose amendments to the Constitution,
which is but adjunct, although peculiar, to its gross legislative power. This,
of course, is not to say that the President has converted his office into a
constituent assembly of that nature normally constituted by the legislature.
Rather, with the interim National Assembly not convened and only the
Presidency and the Supreme Court in operation, the urges of absolute
necessity render it imperative upon the President to act as agent for and in
behalf of the people to propose amendments to the Constitution.
V
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary state is
easily seen. In the Philippines, a republican and unitary state, sovereignty
"resides in the people and all government authority emanates from
them.30 In its fourth meaning, Savigny would treat people as "that
99
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
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. The October 16 referendum-plebiscite is a resounding call to the people

to exercise their sovereign power as constitutional legislator. The proposed
amendments, as earlier discussed, proceed not from the thinking of a
single man. Rather, they are the collated thoughts of the sovereign will
reduced only into enabling forms by the authority who can presently
exercise the powers of the government. In equal vein, the submission of
those proposed amendments and the question of martial law in a
referendum-plebiscite expresses but the option of the people themselves
implemented only by the authority of the President. Indeed, it may well be
said that the amending process is a sovereign act, although the authority
to initiate the same and the procedure to be followed reside somehow in a
particular body.
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.
VI
VII
Referendum-Plebiscite not
1. There appeals to be no valid basis for the claim that the regime of
martial law stultifies in main the freedom to dissent. That speaks of a
bygone fear. The martial law regime which, in the observation of Justice
Fernando, 41 is impressed with a mild character recorded no State
imposition for a muffled voice. To be sure, there are restraints of the
individual liberty, but on certain grounds no total suppression of that
liberty is aimed at. The for the referendum-plebiscite on October 16
recognizes all the embracing freedoms of expression and assembly The
President himself had announced that he would not countenance any
suppression of dissenting views on the issues, as he is not interested in
winning a "yes" or "no" vote, but on the genuine sentiment of the people
on the issues at hand. 42 Thus, the dissenters soon found their way to the
public forums, voicing out loud and clear their adverse views on the
proposed amendments and even (in the valid ratification of the 1973
Constitution, which is already a settled matter. 43 Even government
employees have been held by the Civil Service Commission free to
participate in public discussion and even campaign for their stand on the
referendum-plebiscite issues. 44
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
VIII
100
Time for deliberation
IN RESUME
is not short.
The three issues are
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
1. Is the question of the constitutionality of Presidential Decrees Nos. 991,

1031 and 1033 political or justiciable?
2. During the present stage of the transition period, and under, the
environmental circumstances now obtaining, does the President possess
power to propose amendments to the Constitution as well as set up the
required machinery and prescribe the procedure for the ratification of his
proposals by the people?
3. Is the submission to the people of the proposed amendments within the
time frame allowed therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices
Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz
Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view
that the question posed is justiciable, while Associate Justices Felix V.
Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the
question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the
affirmative, while Associate Justices Teehankee and Munoz Palma voted in
the negative. Associate Justice Fernando, conformably to his concurring
and dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically
dissents from the proposition that there is concentration of powers in the
Executive during periods of crisis, thus raising serious doubts as to the
power of the President to propose amendments.
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
Upon the third issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a
sufficient and proper submission of the proposed amendments for
ratification by the people. Associate Justices Barredo and Makasiar
expressed the hope, however that the period of time may be extended.
Associate Justices Fernando, Makasiar and Antonio are of the view that the
question is political and therefore beyond the competence and cognizance
of this Court, Associate Justice Fernando adheres to his concurrence in the
opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA
774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding
from the President's lack of authority to exercise the constituent power to
propose the amendments, etc., as above stated, there is no fair and proper
submission with sufficient information and time to assure intelligent
consent or rejection under the standards set by this Court in the controlling
cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).
101
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.
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.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are

hereby dismissed. This decision is immediately executory.
SO ORDERED.
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.

SUPREME COURT
Manila
EN BANC
G.R. No. L-56350 April 2, 1981
It is the ruling of the Court, as set forth at the outset, that the petitions
must be dismissed.
SAMUEL C. OCCENA, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE
NATIONAL TREASURER, THE DIRECTOR OF PRINTING, respondents.
1. It is much too late in the day to deny the force and applicability of the
1973 Constitution. In the dispositive portion of Javellana v. The Executive
Secretary, 6 dismissing petitions for prohibition and mandamus to declare
invalid its ratification, this Court stated that it did so by a vote of six 7 to
four. 8 It then concluded: "This being the vote of the majority, there is no
further judicial obstacle to the new Constitution being considered in force
and effect." 9 Such a statement served a useful purpose. It could even be
said that there was a need for it. It served to clear the atmosphere. It made
manifest that, as of January 17, 1973, the present Constitution came into
force and effect. With such a pronouncement by the Supreme Court and
with the recognition of the cardinal postulate that what the Supreme Court
says is not only entitled to respect but must also be obeyed, a factor for
instability was removed. Thereafter, as a matter of law, all doubts were
resolved. The 1973 Constitution is the fundamental law. It is as simple as
that. What cannot be too strongly stressed is that the function of judicial
review has both a positive and a negative aspect. As was so convincingly
demonstrated by Professors Black 10 and Murphy,11 the Supreme Court can
check as well as legitimate. In declaring what the law is, it may not only
nullify the acts of coordinate branches but may also sustain their validity. In
the latter case, there is an affirmation that what was done cannot be
stigmatized as constitutionally deficient. The mere dismissal of a suit of
this character suffices. That is the meaning of the concluding statement in
Javellana. Since then, this Court has invariably applied the present
Constitution. The latest case in point is People v. Sola, 12 promulgated
barely two weeks ago. During the first year alone of the effectivity of the
present Constitution, at least ten cases may be cited. 13
G.R. No. L-56404 April 2, 1981

RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOSIMBONG, 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 1proposing
constitutional
amendments, goes further than merely assailing their alleged
constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales,
both members of the Philippine Bar and former delegates to the 1971
Constitutional Convention that framed the present Constitution, are suing
102
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.
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.
(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." 14One of such powers is precisely that of proposing
amendments. The 1973 Constitution in its Transitory Provisions vested
theInterim 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 InterimBatasang 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
(3) That leaves only the questions of the vote necessary to propose
amendments as well as the standard for proper submission. Again,
petitioners have not made out a case that calls for a judgment in their
favor. The language of the Constitution supplies the answer to the above
questions. The Interim Batasang Pambansa, sitting as a constituent body,
can propose amendments. In that capacity, only a majority vote is needed.
It would be an indefensible proposition to assert that the three-fourth votes
required when it sits as a legislative body applies as well when it has been
convened as the agency through which amendments could be proposed.
That is not a requirement as far as a constitutional convention is
concerned. It is not a requirement either when, as in this case,
the Interim Batasang Pambansa exercises its constituent power to propose
amendments. Moreover, even on the assumption that the requirement of
three- fourth votes applies, such extraordinary majority was obtained. It is
not disputed that Resolution No. 1 proposing an amendment allowing a
natural-born citizen of the Philippines naturalized in a foreign country to
own a limited area of land for residential purposes was approved by the
vote of 122 to 5; Resolution No. 2 dealing with the Presidency, the Prime
Minister and the Cabinet, and the National Assembly by a vote of 147 to 5
with 1 abstention; and Resolution No. 3 on the amendment to the Article on
the Commission on Elections by a vote of 148 to 2 with 1 abstention.
Where then is the alleged infirmity? As to the requisite standard for a
proper submission, the question may be viewed not only from the
standpoint of the period that must elapse before the holding of the
plebiscite but also from the standpoint of such amendments having been
called to the attention of the people so that it could not plausibly be
maintained that they were properly informed as to the proposed changes.
As to the period, the Constitution indicates the way the matter should be
resolved. There is no ambiguity to the applicable provision: "Any
amendment to, or revision of, this Constitution shall be valid when ratified
by a majority of the votes cast in a plebiscite which shall be held not later
than three months after the approval of such amendment or
revision." 21 The three resolutions were approved by the Interim Batasang
Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In
the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7,
1981. It is thus within the 90-day period provided by the Constitution. Thus
(2) Petitioners would urge upon us the proposition that the amendments
proposed are so extensive in character that they go far beyond the limits of
the authority conferred on the Interim Batasang Pambansa as Successor of
theInterim National Assembly. For them, what was done was to revise and
not to amend. It suffices to quote from the opinion of Justice Makasiar,
speaking for the Court, in Del Rosario v. Commission on Elections 18 to
dispose of this contention. Thus: "3. And whether the Constitutional
Convention will only propose amendments to the Constitution or entirely
overhaul the present Constitution and propose an entirely new Constitution
based on an Ideology foreign to the democratic system, is of no moment;
103
any argument to the contrary is unavailing. As for the people being

adequately informed, it cannot be denied that this time, as in the cited
1980 Occena opinion of Justice 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, as well as through the mass media, [ so
that ] it cannot, therefore, be said that our people are unaware of the
advantages and disadvantages of the proposed amendment [ s ]." 22
Antecedent Facts
Immediately upon her assumption to office following the successful
EDSA Revolution, then President Corazon C. Aquino issued Executive Order
No. 1 (EO No. 1) creating the Presidential Commission on Good
Government (PCGG). EO No. 1 primarily tasked the PCGG to recover all illgotten wealth of former President Ferdinand E. Marcos, his immediate
family, relatives, subordinates and close associates. EO No. 1 vested the
PCGG with the power (a) to conduct investigation as may be necessary in
order to accomplish and carry out the purposes of this order and the power
(h) to promulgate such rules and regulations as may be necessary to carry
out the purpose of this order. Accordingly, the PCGG, through its then
Chairman Jovito R. Salonga, created an AFP Anti-Graft Board (AFP Board)
tasked to investigate reports of unexplained wealth and corrupt practices
by AFP personnel, whether in the active service or retired. [2]
WHEREFORE, the petitions are dismissed for lack of merit. No costs.

Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro
and Melencio-Herrera, JJ., concur.
Abad Santos, J., is on leave.
Based on its mandate, the AFP Board investigated various reports of

alleged unexplained wealth of respondent Major General Josephus Q.
Ramas (Ramas). On 27 July 1987, the AFP Board issued a Resolution on its
findings and recommendation on the reported unexplained wealth of
Ramas. The relevant part of the Resolution reads:
Phil Bar v. Comelec (insert here)
III. FINDINGS and EVALUATION:

EN BANC
Evidence in the record showed that respondent is the owner of a house and
lot located at 15-Yakan St., La Vista, Quezon City. He is also the owner of a
house and lot located in Cebu City. The lot has an area of 3,327 square
meters.
[G.R. No. 104768. July 21, 2003]

Republic of the Philippines, petitioner, vs. Sandiganbayan, Major
General Josephus Q. Ramas and Elizabeth Dimaano, respondents.
The value of the property located in Quezon City may be estimated

modestly at P700,000.00.
DECISION
The equipment/items and communication facilities which were found in the

premises of Elizabeth Dimaano and were confiscated by elements of the PC
Command of Batangas were all covered by invoice receipt in the name of
CAPT. EFREN SALIDO, RSO Command Coy, MSC, PA. These items could not
have been in the possession of Elizabeth Dimaano if not given for her use
by respondent Commanding General of the Philippine Army.
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to set
aside the Resolutions of the Sandiganbayan (First Division) [1] dated 18
November 1991 and 25 March 1992 in Civil Case No. 0037. The first
Resolution dismissed petitioners Amended Complaint and ordered the
return of the confiscated items to respondent Elizabeth Dimaano, while the
second Resolution denied petitioners Motion for Reconsideration.Petitioner
prays for the grant of the reliefs sought in its Amended Complaint, or in the
alternative, for the remand of this case to the Sandiganbayan (First
Division) for further proceedings allowing petitioner to complete the
presentation of its evidence.
Aside from the military equipment/items and communications equipment,

the raiding team was also able to confiscate money in the amount
of P2,870,000.00 and $50,000 US Dollars in the house of Elizabeth
Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military Security
Command, Philippine Army, stationed at Camp Eldridge, Los Baos, Laguna,
disclosed that Elizabeth Dimaano is the mistress of respondent. That
104
respondent usually goes and stays and sleeps in the alleged house of
Elizabeth Dimaano in Barangay Tengga, Itaas, Batangas City and when he
arrives, Elizabeth Dimaano embraces and kisses respondent. That on
February 25, 1986, a person who rode in a car went to the residence of
Elizabeth Dimaano with four (4) attache cases filled with money and owned
by MGen Ramas.
Before Ramas could answer the petition, then Solicitor General

Francisco I. Chavez filed an Amended Complaint naming the Republic of
the Philippines (petitioner), represented by the PCGG, as plaintiff and
Ramas as defendant. The Amended Complaint also impleaded Elizabeth
Dimaano (Dimaano) as co-defendant.
The Amended Complaint alleged that Ramas was the Commanding
General of the Philippine Army until 1986. On the other hand, Dimaano was
a confidential agent of the Military Security Unit, Philippine Army, assigned
as a clerk-typist at the office of Ramas from 1 January 1978 to February
1979. The Amended Complaint further alleged that Ramas acquired funds,
assets and properties manifestly out of proportion to his salary as an army
officer and his other income from legitimately acquired property by taking
undue advantage of his public office and/or using his power, authority and
influence as such officer of the Armed Forces of the Philippines and as a
subordinate and close associate of the deposed President Ferdinand
Marcos.[5]
Sworn statement in the record disclosed also that Elizabeth Dimaano had
no visible means of income and is supported by respondent for she was
formerly a mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used the
military equipment/items seized in her house on March 3, 1986 without the
consent of respondent, he being the Commanding General of the Philippine
Army. It is also impossible for Elizabeth Dimaano to claim that she owns
the P2,870,000.00 and $50,000 US Dollars for she had no visible source of
income.
The Amended Complaint also alleged that the AFP Board, after a
previous inquiry, found reasonable ground to believe that respondents
have violated RA No. 1379. [6] The Amended Complaint prayed for, among
others, the forfeiture of respondents properties, funds and equipment in
favor of the State.
This money was never declared in the Statement of Assets and Liabilities of
respondent. There was an intention to cover the existence of these money
because these are all ill-gotten and unexplained wealth. Were it not for the
affidavits of the members of the Military Security Unit assigned at Camp
Eldridge, Los Baos, Laguna, the existence and ownership of these money
would have never been known.
Ramas filed an Answer with Special and/or Affirmative Defenses and

Compulsory Counterclaim to the Amended Complaint. In his Answer,
Ramas contended that his property consisted only of a residential house at
La Vista Subdivision, Quezon City, valued at P700,000, which was not out
of proportion to his salary and other legitimate income. He denied
ownership of any mansion in Cebu City and the cash, communications
equipment and other items confiscated from the house of Dimaano.
The Statement of Assets and Liabilities of respondent were also submitted

for scrutiny and analysis by the Boards consultant. Although the amount
of P2,870,000.00 and $50,000 US Dollars were not included, still it was
disclosed that respondent has an unexplained wealth of P104,134. 60.
IV. CONCLUSION:
Dimaano filed her own Answer to the Amended Complaint. Admitting

her employment as a clerk-typist in the office of Ramas from JanuaryNovember 1978 only, Dimaano claimed ownership of the monies,
communications equipment, jewelry and land titles taken from her house
by the Philippine Constabulary raiding team.
In view of the foregoing, the Board finds that a prima facie case exists
against respondent for ill-gotten and unexplained wealth in the amount
of P2,974,134.00 and $50,000 US Dollars.
V. RECOMMENDATION:
After termination of the pre-trial, [7] the court set the case for trial on
the merits on 9-11 November 1988.
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be

prosecuted and tried for violation of RA 3019, as amended, otherwise
known as Anti-Graft and Corrupt Practices Act and RA 1379, as amended,
otherwise known as The Act for the Forfeiture of Unlawfully Acquired
Property.[3]
On 9 November 1988, petitioner asked for a deferment of the hearing

due to its lack of preparation for trial and the absence of witnesses and
vital documents to support its case. The court reset the hearing to 17 and
18 April 1989.
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under
Republic Act No. 1379 (RA No. 1379) [4] against Ramas.
105
On 13 April 1989, petitioner filed a motion for leave to amend the

complaint in order to charge the delinquent properties with being subject
to forfeiture as having been unlawfully acquired by defendant Dimaano
alone x x x.[8]
not have jurisdiction to investigate and prosecute military officers by

reason of mere position held without a showing that they are subordinates
of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the
dispositive portion of which states:
Nevertheless, in an order dated 17 April 1989, the Sandiganbayan

proceeded with petitioners presentation of evidence on the ground that the
motion for leave to amend complaint did not state when petitioner would
file the amended complaint. The Sandiganbayan further stated that the
subject matter of the amended complaint was on its face vague and not
related to the existing complaint. The Sandiganbayan also held that due to
the time that the case had been pending in court, petitioner should
proceed to present its evidence.
After presenting only
postponement of the trial.
three
witnesses,
petitioner
asked
for
WHEREFORE, judgment is hereby rendered dismissing the Amended

Complaint, without pronouncement as to costs.The counterclaims are
likewise dismissed for lack of merit, but the confiscated sum of money,
communications equipment, jewelry and land titles are ordered returned to
Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon.
Ombudsman, who has primary jurisdiction over the forfeiture cases under
R.A. No. 1379, for such appropriate action as the evidence warrants. This
case is also referred to the Commissioner of the Bureau of Internal
Revenue for a determination of any tax liability of respondent Elizabeth
Dimaano in connection herewith.
On 28 September 1989, during the continuation of the trial, petitioner

manifested its inability to proceed to trial because of the absence of other
witnesses or lack of further evidence to present. Instead, petitioner
reiterated its motion to amend the complaint to conform to the evidence
already presented or to change the averments to show that Dimaano alone
unlawfully acquired the monies or properties subject of the forfeiture.
SO ORDERED.
On 4 December 1991, petitioner filed its Motion for Reconsideration.
The Sandiganbayan noted that petitioner had already delayed the

case for over a year mainly because of its many postponements. Moreover,
petitioner would want the case to revert to its preliminary stage when in
fact the case had long been ready for trial. The Sandiganbayan ordered
petitioner to prepare for presentation of its additional evidence, if any.
In answer to the Motion for Reconsideration, private respondents filed

a Joint Comment/Opposition to which petitioner filed its Reply on 10
January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution denying
the Motion for Reconsideration.
During the trial on 23 March 1990, petitioner again admitted its

inability to present further evidence.Giving petitioner one more chance to
present further evidence or to amend the complaint to conform to its
evidence, the Sandiganbayan reset the trial to 18 May 1990. The
Sandiganbayan, however, hinted that the re-setting was without prejudice
to any action that private respondents might take under the
circumstances.
Ruling of the Sandiganbayan

The Sandiganbayan dismissed the Amended Complaint on the
following grounds:
(1.) The actions taken by the PCGG are not in accordance with the
rulings
of
the
Supreme
Court
in Cruz,
Jr.
v.
Sandiganbayan[10] and Republic v. Migrino[11] which involve
the same issues.
However, on 18 May 1990, petitioner again expressed its inability to

proceed to trial because it had no further evidence to present. Again, in the
interest of justice, the Sandiganbayan granted petitioner 60 days within
which to file an appropriate pleading. The Sandiganbayan, however,
warned petitioner that failure to act would constrain the court to take
drastic action.
(2.) No previous inquiry similar to preliminary investigations in

criminal cases was conducted against Ramas and Dimaano.
Private respondents then filed their motions to dismiss based

on Republic v. Migrino.[9] The Court held in Migrino that the PCGG does
(3.) The evidence adduced against Ramas does not constitute a prima
facie case against him.
106
(4.) There was an illegal search and seizure of the items confiscated.
C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING

THAT THE ARTICLES AND THINGS SUCH AS
SUMS
OF
MONEY,
COMMUNICATIONS
EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED
FROM
THE
HOUSE
OF
RESPONDENT DIMAANO WERE ILLEGALLY
SEIZED AND THEREFORE EXCLUDED AS
EVIDENCE.[12]
The Issues
Petitioner raises the following issues:
A. RESPONDENT
COURT
SERIOUSLY
ERRED
IN
CONCLUDING THAT PETITIONERS EVIDENCE
CANNOT MAKE A CASE FOR FORFEITURE AND
THAT
THERE
WAS
NO
SHOWING
OF
CONSPIRACY, COLLUSION OR RELATIONSHIP
BY CONSANGUINITY OR AFFINITY BY AND
BETWEEN
RESPONDENT
RAMAS
AND
RESPONDENT DIMAANO NOTWITHSTANDING
THE FACT THAT SUCH CONCLUSIONS WERE
CLEARLY UNFOUNDED AND PREMATURE,
HAVING BEEN RENDERED PRIOR TO THE
COMPLETION OF THE PRESENTATION OF THE
EVIDENCE OF THE PETITIONER.
The Courts Ruling

First Issue: PCGGs Jurisdiction to Investigate Private Respondents
This case involves a revisiting of an old issue already decided by this
Court in Cruz, Jr. v. Sandiganbayan[13] and Republic v. Migrino.[14]
The primary issue for resolution is whether the PCGG has the
jurisdiction to investigate and cause the filing of a forfeiture petition
against Ramas and Dimaano for unexplained wealth under RA No. 1379.
B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING

THAT
THE
ACTIONS
TAKEN
BY
THE
PETITIONER, INCLUDING THE FILING OF THE
ORIGINAL COMPLAINT AND THE AMENDED
COMPLAINT, SHOULD BE STRUCK OUT IN LINE
WITH THE RULINGS OF THE SUPREME COURT
IN CRUZ, JR. v. SANDIGANBAYAN, 194 SCRA
474 AND REPUBLIC v. MIGRINO, 189 SCRA
289, NOTWITHSTANDING THE FACT THAT:
We hold that PCGG has no such jurisdiction.

The PCGG created the AFP Board to investigate the unexplained
wealth and corrupt practices of AFP personnel, whether in the active
service or retired.[15] The PCGG tasked the AFP Board to make the
necessary recommendations to appropriate government agencies on the
action to be taken based on its findings.[16] The PCGG gave this task to the
AFP Board pursuant to the PCGGs power under Section 3 of EO No. 1 to
conduct investigation as may be necessary in order to accomplish and to
carry out the purposes of this order. EO No. 1 gave the PCGG specific
responsibilities, to wit:
1. The cases of Cruz, Jr. v. Sandiganbayan, supra,

and Republic v. Migrino, supra, are clearly
not applicable to this case;
SEC. 2. The Commission shall be charged with the task of assisting the
President in regard to the following matters:
2. Any procedural defect in the institution of the

complaint in Civil Case No. 0037 was cured
and/or waived by respondents with the
filing of their respective answers with
counterclaim; and
(a) The recovery of all ill-gotten wealth accumulated by former

President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates, whether
located in the Philippines or abroad, including the
takeover and sequestration of all business enterprises
and entities owned or controlled by them, during his
administration, directly or through nominees, by taking
undue advantage of their public office and/ or using their
powers, authority, influence, connections or relationship.
3. The separate motions to dismiss were evidently

improper considering that they were filed
after commencement of the presentation of
the evidence of the petitioner and even
before the latter was allowed to formally
offer its evidence and rest its case;
107
(b) The investigation of such cases of graft and corruption as the

President may assign to the Commission from time to
time.
[W]here general words follow an enumeration of persons or things by

words of a particular and specific meaning, such general words are not to
be construed in their widest extent, but are to be held as applying only to
persons or things of the same kind or class as those specifically mentioned
[Smith, Bell & Co, Ltd. vs. Register of Deeds of Davao, 96 Phil. 53, 58, citing
Black on Interpretation of Laws, 2nd Ed., 203].
x x x.
The PCGG, through the AFP Board, can only investigate the
unexplained wealth and corrupt practices of AFP personnel who fall under
either of the two categories mentioned in Section 2 of EO No. 1. These are:
(1) AFP personnel who have accumulated ill-gotten wealth during the
administration of former President Marcos by being the latters immediate
family, relative, subordinate or close associate, taking undue advantage of
their public office or using their powers, influence x x x; [17] or (2) AFP
personnel involved in other cases of graft and corruption provided the
President assigns their cases to the PCGG.[18]
[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a
close association with former President Marcos and/or his wife, similar to
the immediate family member, relative, and close associate in EO
No. 1 and the close relative, business associate, dummy, agent, or
nominee in EO No. 2.
xxx
It does not suffice, as in this case, that the respondent is or was a
government official or employee during the administration of former
President Marcos. There must be a prima facie showing that the
respondent unlawfully accumulated wealth by virtue of his close
association or relation with former Pres. Marcos and/or his wife.
(Emphasis supplied)
Petitioner, however, does not claim that the President assigned Ramas
case to the PCGG. Therefore, Ramas case should fall under the first
category of AFP personnel before the PCGG could exercise its jurisdiction
over him. Petitioner argues that Ramas was undoubtedly a subordinate of
former President Marcos because of his position as the Commanding
General of the Philippine Army. Petitioner claims that Ramas position
enabled him to receive orders directly from his commander-in-chief,
undeniably making him a subordinate of former President Marcos.
Ramas position alone as Commanding General of the Philippine Army

with the rank of Major General[19]does not suffice to make him a
subordinate of former President Marcos for purposes of EO No. 1 and its
amendments. The PCGG has to provide a prima facie showing that Ramas
was a close associate of former President Marcos, in the same manner that
business associates, dummies, agents or nominees of former President
Marcos were close to him. Such close association is manifested either by
Ramas complicity with former President Marcos in the accumulation of illgotten wealth by the deposed President or by former President Marcos
acquiescence in Ramas own accumulation of ill-gotten wealth if any.
We hold that Ramas was not a subordinate of former President Marcos

in the sense contemplated under EO No. 1 and its amendments.
Mere position held by a military officer does not automatically make
him a subordinate as this term is used in EO Nos. 1, 2, 14 and 14-A absent
a showing that he enjoyed close association with former President
Marcos. Migrino discussed this issue in this wise:
This, the PCGG failed to do.
A close reading of EO No. 1 and related executive orders will readily show
what is contemplated within the term subordinate. The Whereas Clauses of
EO No. 1 express the urgent need to recover the ill-gotten wealth amassed
by former President Ferdinand E. Marcos, his immediate family, relatives,
and close associates both here and abroad.
Petitioners
attempt
to
differentiate
the
instant
case
from Migrino does not convince us. Petitioner argues that unlike
in Migrino, the AFP Board Resolution in the instant case states that the
AFP Board conducted the investigation pursuant to EO Nos. 1, 2, 14 and
14-A in relation to RA No. 1379. Petitioner asserts that there is a
presumption that the PCGG was acting within its jurisdiction of
investigating crony-related cases of graft and corruption and that Ramas
was truly a subordinate of the former President. However, the same AFP
Board Resolution belies this contention. Although the Resolution begins
with such statement, it ends with the following recommendation:
EO No. 2 freezes all assets and properties in the Philippines in which former
President Marcos and/or his wife, Mrs. Imelda Marcos, their close relatives,
subordinates, business associates, dummies, agents, or nominees have
any interest or participation.
Applying the rule in statutory construction known as ejusdem generis that
is-
V. RECOMMENDATION:
108
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be

prosecuted and tried for violation of RA 3019, as amended, otherwise
known as Anti-Graft and Corrupt Practices Act and RA 1379, as amended,
otherwise known as The Act for the Forfeiture of Unlawfully Acquired
Property.[20]
A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation

with Sections 1, 2 and 3 of Executive Order No. 14, shows what the
authority of the respondent PCGG to investigate and prosecute covers:
(a) the investigation and prosecution of the civil action for the
recovery of ill-gotten wealth under Republic Act No.
1379, accumulated by former President Marcos, his
immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad,
including the take-over or sequestration of all business
enterprises and entities owned or controlled by them,
during his administration, directly or through his
nominees, by taking undue advantage of their public
office and/or using their powers, authority and
influence, connections or relationships; and
Thus, although the PCGG sought to investigate and prosecute private

respondents under EO Nos. 1, 2, 14 and 14-A, the result yielded a finding of
violation of Republic Acts Nos. 3019 and 1379 without any relation to EO
Nos. 1, 2, 14 and 14-A. This absence of relation to EO No. 1 and its
amendments proves fatal to petitioners case. EO No. 1 created the PCGG
for a specific and limited purpose, and necessarily its powers must be
construed to address such specific and limited purpose.
Moreover, the resolution of the AFP Board and even the Amended
Complaint do not show that the properties Ramas allegedly owned were
accumulated by him in his capacity as a subordinate of his commander-inchief. Petitioner merely enumerated the properties Ramas allegedly owned
and suggested that these properties were disproportionate to his salary
and other legitimate income without showing that Ramas amassed them
because of his close association with former President Marcos. Petitioner, in
fact,admits that the AFP Board resolution does not contain a finding that
Ramas accumulated his wealth because of his close association with
former President Marcos, thus:
(b) the investigation and prosecution of such offenses committed

in the acquisition of said ill-gotten wealth as contemplated
under Section 2(a) of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices
Act not otherwise falling under the foregoing categories, require a
previous authority of the President for the respondent PCGG to
investigate and prosecute in accordance with Section 2 (b) of
Executive Order No. 1. Otherwise, jurisdiction over such cases is
vested in the Ombudsman and other duly authorized investigating
agencies such as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants and the
state prosecutors. (Emphasis supplied)
10. While it is true that the resolution of the Anti-Graft Board of the
New Armed Forces of the Philippines did not categorically find
a prima facie evidence showing that respondent Ramas unlawfully
accumulated wealth by virtue of his close association or relation
with former President Marcos and/or his wife, it is submitted that
such omission was not fatal. The resolution of the Anti-Graft Board
should be read in the context of the law creating the same and the
objective of the investigation which was, as stated in the above, pursuant
to Republic Act Nos. 3019 and 1379 in relation to Executive Order Nos. 1,
2, 14 and 14-a;[21] (Emphasis supplied)
The proper government agencies, and not the PCGG, should

investigate and prosecute forfeiture petitions not falling under EO No. 1
and its amendments. The preliminary investigation of unexplained wealth
amassed on or before 25 February 1986 falls under the jurisdiction of the
Ombudsman, while the authority to file the corresponding forfeiture
petition rests with the Solicitor General. [27] The Ombudsman Act or Republic
Act No. 6770 (RA No. 6770) vests in the Ombudsman the power to conduct
preliminary investigation and to file forfeiture proceedings involving
unexplained wealth amassed after 25 February 1986.[28]
Such omission is fatal. Petitioner forgets that it is precisely a prima

facie showing that the ill-gotten wealth was accumulated by a subordinate
of former President Marcos that vests jurisdiction on PCGG. EO No.
1[22] clearly premises the creation of the PCGG on the urgent need to
recover all ill-gotten wealth amassed by former President Marcos, his
immediate family, relatives, subordinates and close associates.Therefore,
to say that such omission was not fatal is clearly contrary to the intent
behind the creation of the PCGG.
After the pronouncements of the Court in Cruz, the PCGG still pursued
this case despite the absence of a prima facie finding that Ramas was a
subordinate of former President Marcos. The petition for forfeiture filed with
the Sandiganbayan should be dismissed for lack of authority by the PCGG
to investigate respondents since there is no prima facie showing that EO
No. 1 and its amendments apply to respondents. The AFP Board Resolution
and even the Amended Complaint state that there are violations of RA Nos.
3019 and 1379. Thus, the PCGG should have recommended Ramas case to
In Cruz, Jr. v. Sandiganbayan,[23] the Court outlined the cases that

fall under the jurisdiction of the PCGG pursuant to EO Nos. 1, 2, [24] 14,
[25]
14-A:[26]
109
the Ombudsman who has jurisdiction to conduct the preliminary

investigation of ordinary unexplained wealth and graft cases. As stated
in Migrino:
We disagree.
Based on the findings of the Sandiganbayan and the records of this
case, we find that petitioner has only itself to blame for non-completion of
the presentation of its evidence. First, this case has been pending for four
years before the Sandiganbayan dismissed it. Petitioner filed its
Amended Complaint on 11
August1987, and only began to
present its evidence on 17 April 1989. Petitioner had almost two years to
prepare its evidence. However, despite this sufficient time, petitioner still
delayed the presentation of the rest of its evidence by filing numerous
motions for postponements and extensions. Even before the date set for
the presentation of its evidence, petitioner filed, on 13 April 1989, a Motion
for Leave to Amend the Complaint.[34]The motion sought to charge the
delinquent properties (which comprise most of petitioners evidence) with
being subject to forfeiture as having been unlawfully acquired by
defendant Dimaano alone x x x.
[But] in view of the patent lack of authority of the PCGG to investigate and
cause the prosecution of private respondent for violation of Rep. Acts Nos.
3019 and 1379, the PCGG must also be enjoined from proceeding with the
case, without prejudice to any action that may be taken by the proper
prosecutory agency. The rule of law mandates that an agency of
government be allowed to exercise only the powers granted to it.
Petitioners argument that private respondents have waived any defect
in the filing of the forfeiture petition by submitting their respective Answers
with counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there is
no jurisdiction to waive in the first place. The PCGG cannot exercise
investigative or prosecutorial powers never granted to it. PCGGs powers
are specific and limited. Unless given additional assignment by the
President, PCGGs sole task is only to recover the ill-gotten wealth of the
Marcoses, their relatives and cronies. [29] Without these elements, the PCGG
cannot claim jurisdiction over a case.
The Sandiganbayan, however, refused to defer the presentation of

petitioners evidence since petitioner did not state when it would file the
amended complaint. On 18 April 1989, the Sandiganbayan set the
continuation of the presentation of evidence on 28-29 September and 9-11
October 1989, giving petitioner ample time to prepare its evidence. Still, on
28 September 1989, petitioner manifested its inability to proceed with the
presentation of its evidence. The Sandiganbayan issued an Order
expressing its view on the matter, to wit:
Private respondents questioned the authority and jurisdiction of the

PCGG to investigate and prosecute their cases by filing their Motion to
Dismiss as soon as they learned of the pronouncement of the Court
inMigrino. This case was decided on 30 August 1990, which explains why
private respondents only filed their Motion to Dismiss on 8 October
1990. Nevertheless, we have held that the parties may raise lack of
jurisdiction at any stage of the proceeding. [30] Thus, we hold that there was
no waiver of jurisdiction in this case. Jurisdiction is vested by law and not
by the parties to an action.[31]
The Court has gone through extended inquiry and a narration of the above
events because this case has been ready for trial for over a year and much
of the delay hereon has been due to the inability of the government to
produce on scheduled dates for pre-trial and for trial documents and
witnesses, allegedly upon the failure of the military to supply them for the
preparation of the presentation of evidence thereon. Of equal interest is
the fact that this Court has been held to task in public about its alleged
failure to move cases such as this one beyond the preliminary stage, when,
in view of the developments such as those of today, this Court is now faced
with a situation where a case already in progress will revert back to the
preliminary stage, despite a five-month pause where appropriate action
could have been undertaken by the plaintiff Republic. [35]
Consequently, the petition should be dismissed for lack of jurisdiction

by the PCGG to conduct the preliminary investigation. The Ombudsman
may still conduct the proper preliminary investigation for violation of RA
No. 1379, and if warranted, the Solicitor General may file the forfeiture
petition with the Sandiganbayan. [32] The right of the State to forfeit
unexplained wealth under RA No. 1379 is not subject to prescription, laches
or estoppel.[33]
On 9 October 1989, the PCGG manifested in court that it was

conducting a preliminary investigation on the unexplained wealth of
private respondents as mandated by RA No. 1379. [36] The PCGG prayed for
an additional four months to conduct the preliminary investigation. The
Sandiganbayan granted this request and scheduled the presentation of
evidence on 26-29 March 1990. However, on the scheduled date, petitioner
failed to inform the court of the result of the preliminary investigation the
PCGG supposedly conducted. Again, the Sandiganbayan gave petitioner
until 18 May 1990 to continue with the presentation of its evidence and to
Second Issue: Propriety of Dismissal of Case

Before Completion of Presentation of Evidence
Petitioner also contends that the Sandiganbayan erred in dismissing
the case before completion of the presentation of petitioners evidence.
110
inform the court of what lies ahead insofar as the status of the case is
concerned x x x.[37] Still on the date set, petitioner failed to present its
evidence. Finally, on 11 July 1990, petitioner filed its Re-Amended
Complaint.[38] The Sandiganbayan correctly observed that a case already
pending for years would revert to its preliminary stage if the court were to
accept the Re-Amended Complaint.
successful EDSA revolution.[39] Petitioner argues that a revolutionary

government was operative at that time by virtue of Proclamation No. 1
announcing that President Aquino and Vice President Laurel were taking
power in the name and by the will of the Filipino people. [40] Petitioner
asserts that the revolutionary government effectively withheld the
operation of the 1973 Constitution which guaranteed private respondents
exclusionary right.
Based on these circumstances, obviously petitioner has only itself to

blame for failure to complete the presentation of its evidence. The
Sandiganbayan gave petitioner more than sufficient time to finish the
presentation of its evidence. The Sandiganbayan overlooked petitioners
delays and yet petitioner ended the long-string of delays with the filing of a
Re-Amended Complaint, which would only prolong even more the
disposition of the case.
Moreover, petitioner argues that the exclusionary right arising from an

illegal search applies only beginning 2 February 1987, the date of
ratification of the 1987 Constitution. Petitioner contends that all rights
under the Bill of Rights had already reverted to its embryonic stage at the
time of the search. Therefore, the government may confiscate the monies
and items taken from Dimaano and use the same in evidence against her
since at the time of their seizure, private respondents did not enjoy any
constitutional right.
Moreover,
the
pronouncements
of
the
Court
in Migrino and Cruz prompted the Sandiganbayan to dismiss the case
since the PCGG has no jurisdiction to investigate and prosecute the case
against private respondents. This alone would have been sufficient legal
basis for the Sandiganbayan to dismiss the forfeiture case against private
respondents.
Petitioner is partly right in its arguments.

The EDSA Revolution took place on 23-25 February 1986. As succinctly
stated in President Aquinos Proclamation No. 3 dated 25 March 1986, the
EDSA Revolution was done in defiance of the provisions of the 1973
Constitution.[41] The
resulting
government
was
indisputably
a
revolutionary government bound by no constitution or legal limitations
except treaty obligations that the revolutionary government, as the de
juregovernment in the Philippines, assumed under international law.
Thus, we hold that the Sandiganbayan did not err in dismissing the
case before completion of the presentation of petitioners evidence.
Third Issue: Legality of the Search and Seizure
The correct issues are: (1) whether the revolutionary government was
bound by the Bill of Rights of the 1973 Constitution during
the interregnum, that is, after the actual and effective take-over of power
by the revolutionary government following the cessation of resistance by
loyalist forces up to 24 March 1986 (immediately before the adoption of
the Provisional Constitution); and (2) whether the protection accorded to
individuals under the International Covenant on Civil and Political Rights
(Covenant) and the Universal Declaration of Human Rights (Declaration)
remained in effect during the interregnum.
Petitioner claims that the Sandiganbayan erred in declaring the

properties confiscated from Dimaanos house as illegally seized and
therefore inadmissible in evidence. This issue bears a significant effect on
petitioners case since these properties comprise most of petitioners
evidence against private respondents. Petitioner will not have much
evidence to support its case against private respondents if these properties
are inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at Dimaanos
residence a search warrant captioned Illegal Possession of Firearms and
Ammunition. Dimaano was not present during the raid but Dimaanos
cousins witnessed the raid. The raiding team seized the items detailed in
the seizure receipt together with other items not included in the search
warrant. The raiding team seized these items: one baby armalite rifle with
two magazines; 40 rounds of 5.56 ammunition; one pistol, caliber .45;
communications equipment, cash consisting of P2,870,000 and US$50,000,
jewelry, and land titles.
We hold that the Bill of Rights under the 1973 Constitution was not
operative during the interregnum.However, we rule that the protection
accorded to individuals under the Covenant and the Declaration remained
in effect during the interregnum.
During the interregnum, the directives and orders of the revolutionary
government were the supreme law because no constitution limited the
extent and scope of such directives and orders. With the abrogation of the
1973 Constitution by the successful revolution, there was no municipal law
higher than the directives and orders of the revolutionary
government. Thus, during the interregnum, a person could not invoke any
Petitioner wants the Court to take judicial notice that the raiding team
conducted the search and seizure on March 3, 1986 or five days after the
111
exclusionary right under a Bill of Rights because there was neither a

constitution nor a Bill of Rights during the interregnum. As the Court
explained in Letter of Associate Justice Reynato S. Puno:[42]
mere executive issuance without judicial action, would violate the due
process and search and seizure clauses of the Bill of Rights.
During the interregnum, the government in power was concededly a
revolutionary government bound by no constitution. No one could validly
question the sequestration orders as violative of the Bill of Rights because
there was no Bill of Rights during the interregnum. However, upon the
adoption of the Freedom Constitution, the sequestered companies assailed
the sequestration orders as contrary to the Bill of Rights of the Freedom
Constitution.
A revolution has been defined as the complete overthrow of the

established government in any country or state by those who were
previously subject to it or as a sudden, radical and fundamental change in
the government or political system, usually effected with violence or at
least some acts of violence. In Kelsen's book, General Theory of Law and
State, it is defined as that which occurs whenever the legal order of a
community is nullified and replaced by a new order . . . a way not
prescribed by the first order itself.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential

Commission on Good Government,[43]petitioner Baseco, while
conceding there was no Bill of Rights during the interregnum, questioned
the continued validity of the sequestration orders upon adoption of the
Freedom Constitution in view of the due process clause in its Bill of
Rights. The Court ruled that the Freedom Constitution, and later the 1987
Constitution, expressly recognized the validity of sequestration orders,
thus:
It was through the February 1986 revolution, a relatively peaceful one, and
more popularly known as the people power revolution that the Filipino
people tore themselves away from an existing regime. This revolution also
saw the unprecedented rise to power of the Aquino government.
From the natural law point of view, the right of revolution has been defined
as an inherent right of a people to cast out their rulers, change their policy
or effect radical reforms in their system of government or institutions by
force or a general uprising when the legal and constitutional methods of
making such change have proved inadequate or are so obstructed as to be
unavailable. It has been said that the locus of positive law-making power
lies with the people of the state and from there is derived the right of the
people to abolish, to reform and to alter any existing form of government
without regard to the existing constitution.
If any doubt should still persist in the face of the foregoing considerations
as to the validity and propriety of sequestration, freeze and takeover
orders, it should be dispelled by the fact that these particular remedies and
the authority of the PCGG to issue them have received constitutional
approbation and sanction. As already mentioned, the Provisional or
Freedom Constitution recognizes the power and duty of the President to
enact measures to achieve the mandate of the people to . . . (r)ecover illgotten properties amassed by the leaders and supporters of the previous
regime and protect the interest of the people through orders of
sequestration or freezing of assets or accounts. And as also already
adverted to, Section 26, Article XVIII of the 1987 Constitution treats of, and
ratifies the authority to issue sequestration or freeze orders under
Proclamation No. 3 dated March 25, 1986.
xxx
It is widely known that Mrs. Aquinos rise to the presidency was
not due to constitutional processes; in fact, it was achieved in
violation of the provisions of the 1973 Constitution as a Batasang
Pambansa resolution had earlier declared Mr. Marcos as the
winner in the 1986 presidential election. Thus it can be said that the
organization of Mrs. Aquinos Government which was met by little
resistance and her control of the state evidenced by the appointment of
the Cabinet and other key officers of the administration, the departure of
the Marcos Cabinet officials, revamp of the Judiciary and the Military
signaled the point where the legal system then in effect, had ceased
to be obeyed by the Filipino. (Emphasis supplied)
The framers of both the Freedom Constitution and the 1987

Constitution were fully aware that the sequestration orders would clash
with the Bill of Rights. Thus, the framers of both constitutions had to
include specific language recognizing the validity of the sequestration
orders. The following discourse by Commissioner Joaquin G. Bernas during
the deliberations of the Constitutional Commission is instructive:
FR. BERNAS: Madam President, there is something schizophrenic about the
arguments in defense of the present amendment.
To hold that the Bill of Rights under the 1973 Constitution remained
operative during the interregnum would render void all sequestration
orders issued by the Philippine Commission on Good Government (PCGG)
before the adoption of the Freedom Constitution. The sequestration orders,
which direct the freezing and even the take-over of private property by
For instance, I have carefully studied Minister Salongas lecture in

the Gregorio Araneta University Foundation, of which all of us
have been given a copy. On the one hand, he argues that
everything the Commission is doing is traditionally legal. This is
112
repeated by Commissioner Romulo also. Minister Salonga spends

a major portion of his lecture developing that argument. On the
other hand, almost as an afterthought, he says that in the end
what matters are the results and not the legal niceties, thus
suggesting that the PCGG should be allowed to make some legal
shortcuts, another word for niceties or exceptions.
Minister, and repeated verbatim by another staunch Christian like

Commissioner Tingson, it becomes doubly disturbing and even
discombobulating. The argument makes the PCGG an auctioneer,
placing the Bill of Rights on the auction block. If the price is right,
the search and seizure clause will be sold. Open your Swiss bank
account to us and we will award you the search and seizure
clause. You can keep it in your private safe.
Now, if everything the PCGG is doing is legal, why is it asking the

CONCOM for special protection? The answer is clear. What they
are doing will not stand the test of ordinary due process,
hence
they
are
asking
for
protection,
for
exceptions. Grandes malos, grandes remedios, fine, as the
saying stands, but let us not say grandes malos, grande y malos
remedios. That is not an allowable extrapolation. Hence, we
should not give the exceptions asked for, and let me elaborate
and give three reasons:
Alternatively, the argument looks on the present government as

hostage to the hoarders of hidden wealth. The hoarders will
release the hidden health if the ransom price is paid and the
ransom price is the Bill of Rights, specifically the due process in
the search and seizure clauses. So, there is something positively
revolving about either argument. The Bill of Rights is not for sale
to the highest bidder nor can it be used to ransom captive
dollars. This nation will survive and grow strong, only if it would
become convinced of the values enshrined in the Constitution of
a price that is beyond monetary estimation.
First, the whole point of the February Revolution and of the work
of the CONCOM is to hasten constitutional normalization. Very
much at the heart of the constitutional normalization is the full
effectivity of the Bill of Rights. We cannot, in one breath, ask for
constitutional normalization and at the same time ask for a
temporary halt to the full functioning of what is at the heart of
constitutionalism. That would be hypocritical; that would be a
repetition of Marcosian protestation of due process and rule of
law. The New Society word for that is backsliding. It is tragic when
we begin to backslide even before we get there.
For these reasons, the honorable course for the Constitutional

Commission is to delete all of Section 8 of the committee report
and allow the new Constitution to take effect in full vigor. If
Section 8 is deleted, the PCGG has two options. First, it can
pursue the Salonga and the Romulo argument that what the
PCGG has been doing has been completely within the pale of the
law. If sustained, the PCGG can go on and should be able to go
on, even without the support of Section 8. If not sustained,
however, the PCGG has only one honorable option, it must bow to
the majesty of the Bill of Rights.
Second, this is really a corollary of the first. Habits tend to

become ingrained. The committee report asks for extraordinary
exceptions from the Bill of Rights for six months after the
convening of Congress, and Congress may even extend this
longer.
The PCGG extrapolation of the law is defended by staunch

Christians. Let me conclude with what another Christian replied
when asked to toy around with the law. From his prison cell,
Thomas More said, "I'll give the devil benefit of law for my nations
safety sake. I ask the Commission to give the devil benefit of law
for our nations sake. And we should delete Section 8.
Good deeds repeated ripen into virtue; bad deeds repeated

become vice. What the committee report is asking for is that we
should allow the new government to acquire the vice of
disregarding the Bill of Rights.
Thank you, Madam President. (Emphasis supplied)
Vices, once they become ingrained, become difficult to shed. The

practitioners of the vice begin to think that they have a vested
right to its practice, and they will fight tooth and nail to keep the
franchise. That would be an unhealthy way of consolidating the
gains of a democratic revolution.
Despite the impassioned plea by Commissioner Bernas against the

amendment
excepting sequestrationorders from the Bill of Rights, the
Constitutional Commission still adopted the amendment as Section 26,
[44]
Article XVIII of the 1987 Constitution. The framers of the Constitution
were fully aware that absent Section 26, sequestration orders would not
stand the test of due process under the Bill of Rights.
Third, the argument that what matters are the results and not the
legal niceties is an argument that is very disturbing. When it
comes from a staunch Christian like Commissioner Salonga, a
Thus, to rule that the Bill of Rights of the 1973 Constitution remained
in force during the interregnum, absent a constitutional provision excepting
113
sequestration orders from such Bill of Rights, would clearly render all
sequestration orders void during the interregnum. Nevertheless, even
during the interregnum the Filipino people continued to enjoy, under the
Covenant and the Declaration, almost the same rights found in the Bill of
Rights of the 1973 Constitution.
these officers did not exceed the authority granted them by the
revolutionary government. The directives and orders should not have also
violated the Covenant or the Declaration. In this case, the revolutionary
government presumptively sanctioned the warrant since the revolutionary
government did not repudiate it. The warrant, issued by a judge upon
proper application, specified the items to be searched and seized. The
warrant is thus valid with respect to the items specifically described in the
warrant.
The revolutionary government, after installing itself as the de

jure government, assumed responsibility for the States good faith
compliance with the Covenant to which the Philippines is a
signatory. Article 2(1) of the Covenant requires each signatory State to
respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights[45] recognized in the present Covenant. Under Article
17(1) of the Covenant, the revolutionary government had the duty to
insure that [n]o one shall be subjected to arbitrary or unlawful interference
with his privacy, family, home or correspondence.
However, the Constabulary raiding team seized items not included in

the warrant. As admitted by petitioners witnesses, the raiding team
confiscated items not included in the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES
The Declaration, to which the Philippines is also a signatory, provides

in its Article 17(2) that [n]o one shall be arbitrarily deprived of his
property. Although the signatories to the Declaration did not intend it as a
legally binding document, being only a declaration, the Court has
interpreted the Declaration as part of the generally accepted principles of
international law and binding on the State. [46] Thus, the revolutionary
government was also obligated under international law to observe the
rights[47] of individuals under the Declaration.
Q. According to the search warrant, you are supposed to

seize only for weapons. What else, aside from the
weapons, were seized from the house of Miss
Elizabeth Dimaano?
A. The communications equipment, money in Philippine
currency and US dollars, some jewelries, land titles,
sir.
The revolutionary government did not repudiate the Covenant or the

Declaration during the interregnum. Whether the revolutionary
government could have repudiated all its obligations under the Covenant
or the Declaration is another matter and is not the issue here. Suffice it to
say that the Court considers the Declaration as part of customary
international law, and that Filipinos as human beings are proper subjects of
the rules of international law laid down in the Covenant. The fact is the
revolutionary government did not repudiate the Covenant or the
Declaration in the same way it repudiated the 1973 Constitution. As the de
juregovernment, the revolutionary government could not escape
responsibility for the States good faith compliance with its treaty
obligations under international law.
Q. Now, the search warrant speaks only of weapons to be

seized from the house of Elizabeth Dimaano.Do you
know the reason why your team also seized other
properties not mentioned in said search warrant?
A. During the conversation right after the conduct of said
raid, I was informed that the reason why they also
brought the other items not included in the search
warrant was because the money and other jewelries
were contained in attach cases and cartons with
markings Sony Trinitron, and I think three (3) vaults or
steel safes. Believing that the attach cases and the
steel safes were containing firearms, they forced open
these containers only to find out that they contained
money.
It was only upon the adoption of the Provisional Constitution on 25

March 1986 that the directives and orders of the revolutionary government
became subject to a higher municipal law that, if contravened, rendered
such directives and orders void. The Provisional Constitution adopted
verbatim the Bill of Rights of the 1973 Constitution. [48] The Provisional
Constitution served as a self-limitation by the revolutionary government to
avoid abuses of the absolute powers entrusted to it by the people.
xxx
Q. You said you found money instead of weapons, do you
know the reason why your team seized this money
instead of weapons?
During the interregnum when no constitution or Bill of Rights existed,

directives and orders issued by government officers were valid so long as
114
A. I think the overall team leader and the other two officers
assisting him decided to bring along also the money
because at that time it was already dark and they felt
most secured if they will bring that because they
might be suspected also of taking money out of those
items, your Honor.[49]
Q. But they did not mention to you, the applicant for the
search warrant, any other properties or contraband
which could be found in the residence of Miss
Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some
hidden items, for instance, the communications
equipment and money. However, I did not include that
in the application for search warrant considering that
we have not established concrete evidence about
that. So when
Cross-examination
Atty. Banaag
Q. Were you present when the search warrant in connection
with this case was applied before the Municipal Trial
Court of Batangas, Branch 1?
Q. So that when you applied for search warrant, you had

reason to believe that only weapons were in the house
of Miss Elizabeth Dimaano?
A. Yes, sir.
A. Yes, your Honor.[50]
Q. And the search warrant applied for by you was for the
search and seizure of five (5) baby armalite rifles M-16
and five (5) boxes of ammunition?
xxx
Q. You stated that a .45 caliber pistol was seized along with
one armalite rifle M-16 and how many ammunition?
A. Yes, sir.
xxx
A. Forty, sir.
AJ AMORES
Q. And this became the subject of your complaint with the

issuing Court, with the fiscals office who charged
Elizabeth Dimaano for Illegal Possession of Firearms
and Ammunition?
Q. Before you applied for a search warrant, did you conduct

surveillance in the house of Miss Elizabeth Dimaano?
A. Yes, sir.
A. The Intelligence Operatives conducted surveillance

together with the MSU elements, your Honor.
Q. Do you know what happened to that case?
Q. And this party believed there were weapons deposited in

the house of Miss Elizabeth Dimaano?
A. I think it was dismissed, sir.
A. Yes, your Honor.
Q. In the fiscals office?
Q. And they so swore before the Municipal Trial Judge?
A. Yes, sir.
A. Yes, your Honor.
Q. Because the armalite rifle you seized, as well as the .45

caliber pistol had a Memorandum Receipt in the name
of Felino Melegrito, is that not correct?
A. I think that was the reason, sir.
115
Q. There were other articles seized which were not included

in the search warrant, like for instance, jewelries. Why
did you seize the jewelries?
items from the possessor. We thus hold that these items should be
returned immediately to Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The questioned
Resolutions of the Sandiganbayan dated 18 November 1991 and 25 March
1992 in Civil Case No. 0037, remanding the records of this case to the
Ombudsman for such appropriate action as the evidence may warrant, and
referring this case to the Commissioner of the Bureau of Internal Revenue
for a determination of any tax liability of respondent Elizabeth Dimaano,
are AFFIRMED.
A. I think it was the decision of the overall team leader and

his assistant to bring along also the jewelries and
other items, sir. I do not really know where it was
taken but they brought along also these articles. I do
not really know their reason for bringing the same, but
I just learned that these were taken because they
might get lost if they will just leave this behind.
SO ORDERED.
xxx
EN BANC
Q. How about the money seized by your raiding team, they
were not also included in the search warrant?
[A.M. No. 90-11-2697-CA. June 29, 1992.]

LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of the Court of
Appeals dated 14 November 1990.
A. Yes sir, but I believe they were also taken considering that
the money was discovered to be contained in attach
cases. These attach cases were suspected to be
containing pistols or other high powered firearms, but
in the course of the search the contents turned out to
be money. So the team leader also decided to take
this considering that they believed that if they will just
leave the money behind, it might get lost also.
RESOLUTION
PADILLA, J.:
Q. That holds true also with respect to the other articles that
were seized by your raiding team, like Transfer
Certificates of Title of lands?
Petitioner Associate Justice Reynato S. Puno, a member of the Court of

Appeals, wrote a letter dated 14 November 1990 addressed to this Court,
seeking the correction of his seniority ranking in the Court of Appeals.
A. Yes, sir. I think they were contained in one of the vaults

that were opened.[51]
It appears from the records that petitioner was first appointed Associate
Justice of the Court of Appeals on 20 June 1980 but took his oath of office
for said position only on 29 November 1982, after serving as Assistant
Solicitor General in the Office of the Solicitor General since 1974. 1
It is obvious from the testimony of Captain Sebastian that the warrant

did not include the monies, communications equipment, jewelry and land
titles that the raiding team confiscated. The search warrant did not
particularly describe these items and the raiding team confiscated them on
its own authority. The raiding team had no legal basis to seize these items
without showing that these items could be the subject of warrantless
search and seizure.[52] Clearly, the raiding team exceeded its authority
when it seized these items.
On 17 January 1983, the Court of Appeals was reorganized and became the
Intermediate Appellate Court pursuant to Batas Pambansa Blg. 129 entitled
"An Act Reorganizing the Judiciary. Appropriating Funds Therefor and For
Other Purposes." 2 Petitioner was appointed Appellate Justice in the First
Special Cases Division of the Intermediate Appellate Court. On 7 November
1984, petitioner accepted an appointment to be ceased to be a member of
the
Judiciary.
3
The seizure of these items was therefore void, and unless these items
are contraband per se,[53] and they are not, they must be returned to the
person from whom the raiding seized them. However, we do not declare
that such person is the lawful owner of these items, merely that the search
and seizure warrant could not be used as basis to seize and withhold these
The aftermath of the EDSA Revolution in February 1986 brought about a

reorganization of the entire government, including the Judiciary. To effect
the reorganization of the Intermediate Appellate Court and other lower
courts, a Screening Committee was created, with the then Minister of
116
Justice, now Senator Neptali Gonzales as Chairman and then Solicitor

General, now Philippine Ambassador to the United Nations Sedfrey Ordoez
as Vice Chairman. President Corazon C. Aquino, exercising legislative
powers by virtue of the revolution, issued Executive Order No. 33 to govern
the
aforementioned
reorganization
of
the
Judiciary.
4
In a resolution of the Court en banc dated 29 November 1990, the Court

granted Justice Punos request. 9 It will be noted that before the issuance
of said resolution, there was no written opposition to, or comment on
petitioners aforesaid request. The dispositive portion of the resolution
reads:jgc:chanrobles.com.ph
The Screening Committee recommended the return of petitioner as

Associate Justice of the new Court of Appeals and assigned him the rank of
number eleven (11) in the roster of appellate court justices. When the
appointments were signed by President Aquino on 28 July 1986,
petitioners seniority ranking changed, however, from number eleven (11)
to
number
twenty
six
(26).
5
"IN VIEW WHEREOF, the petition of Associate Justice Reynato S. Puno for
correction of his seniority ranking in the Court of Appeals is granted. The
presiding Justice of the Court of Appeals, the Honorable Rodolfo A. Nocon,
is hereby directed to correct the seniority rank of Justice Puno from number
twelve (12) to number five (5). Let copies of this Resolution be furnished
the Court Administrator and the Judicial and Bar Council for their guidance
and
information."
10
Petitioner now alleges that the change in his seniority ranking could only
be attributed to inadvertence for, otherwise, it would run counter to the
provisions of Section 2 of Executive Order No. 33, which reads:chanrobles
virtual
lawlibrary
A motion for reconsideration of the resolution of the Court en banc dated

29 November 1990 was later filed by Associate Justices Jose C. Campos, Jr.
and Luis A. Javellana, two (2) of the Associate Justices affected by the
ordered correction. They contend that the present Court of Appeals is a
new Court with fifty one (51) members and that petitioner could not claim
a reappointment to a prior court; neither can he claim that he was
returning to his former court, for the courts where he had previously been
appointed ceased to exist at the date of his last appointment. 11
"SECTION 2. Section 3, Chapter 1 of Batas Pambansa Blg. 129, is hereby

amended
to
read
as
follows:jgc:chanrobles.com.ph
"SEC. 2. Organization. There is hereby created a Court of Appeals which
shall consist of a Presiding Justice and fifty Associate Justices who shall be
appointed by the President of the Philippines. The Presiding Justice shall be
so designated in his appointment and the Associate Justice shall have
precedence according to the dates of their respective appointments, or
when the appointments of two or more shall bear the same date, according
to the order in which their appointments were issued by the President. Any
Member who is reappointed to the Court after rendering service in any
other position in the government shall retain the precedence to which he
was entitled under his original appointment, and his service in the Court
shall, for all intents and purpose be considered as continuous and
uninterrupted."
6
The Court en banc in a resolution dated 17 January 1992 required the

petitioner to file his comment on the motion for reconsideration of the
resolution
dated
29
November
1990.
In his Comment, petitioner argues that, by virtue of Executive Order No. 33
read in relation to B.P. Blg. 129, his seniority ranking in the Court of
Appeals is now number five (5) for, though President Aquino rose to power
by virtue of a revolution, she had pledged at the issuance of Proclamation
No. 3 (otherwise known as the Freedom Constitution) that "no right
provided under the unratified 1973 Constitution (shall) be absent in the
Freedom
Constitution."
12
Petitioner elaborates that President Aquino is presumed to have intended

to comply with her own Executive Order No. 33 so much so that the
correction of the inadvertent error would only implement the intent of the
President as well as the spirit of Executive Order No. 33 and will not
provoke any kind of constitutional confrontation (between the President
and
the
Supreme
Court).
7
Moreover, since the last sentence of Section 2 of Executive Order No. 33

virtually re-enacted the last sentence of Sec. 3, Chapter 1 of B.P. Blg. 129,
statutory construction rules on simultaneous repeal and re-enactment
mandate, according to petitioner, the preservation and enforcement of all
rights and liabilities which had accrued under the original statute. 13
Furthermore, petitioner avers that, although the power of appointment is
executive in character and cannot be usurped by any other branch of the
Government, such power can still be regulated by the Constitution and by
the appropriate law, in this case, by the limits set by Executive Order NO.
33 14 for the power of appointment cannot be wielded in violation of law.
15
Petitioner points to the case of Justice Oscar Victoriano, former Presiding

Justice of the Court of Appeals who, according to petitioner, was
transferred from his position as Justice of the Court of Appeals to the
Ministry of Justice as Commissioner of Land Registration and in 1986 was
reappointed to the Court of Appeals. Petitioner states that his (Victorianos)
stint in the Commission of Land Registration did not adversely affect his
seniority ranking in the Court of Appeals, for, in his case, Executive Order
No.
33
was
correctly
applied.
8
Justices Javellana and Campos were required by the Court to file their reply
to Justice Punos comment on their motion for reconsideration of the
resolution
of
the
Court
en
banc
dated
24
January
117
1991.chanrobles.com:cralaw:red
people tore themselves away from an existing regime. This revolution also
saw the unprecedented rise to power of the Aquino government.
In their Reply and Supplemental Reply, Associate Justices Javellana and

Campos submit that the appeal or request for correction filed by the
petitioner was addressed to the wrong party. They aver that as petitioner
himself had alleged the mistake to be an "inadvertent error" of the Office
of the President, ergo, he should have filed his request for correction also
with said Office of the President and not directly with the Supreme Court.
16 Furthermore, they point out that petitioner had indeed filed with the
Office of the President a request or petition for correction of his ranking,
(seniority) but the same was not approved such that his recourse should
have been an appropriate action before the proper court and impleading all
parties concerned. The aforesaid non-approval by the Office of the
President they argue, should be respected by the Supreme Court "not only
on the basis of the doctrine of separation of powers but also their
presumed knowledge ability and even expertise in the laws they are
entrusted to enforce" 17 for it (the non-approval) is a confirmation that
petitioners seniority ranking at the time of his appointment by President
Aquino was, in fact, deliberate and not an "inadvertent error" as petitioner
would
have
the
Court
believe.
18
From the natural law point of view, the right of revolution has been defined
as "an inherent right of a people to cast out their rulers, change their policy
or effect radical reforms in their system of government or institutions by
force or a general uprising when the legal and constitutional methods of
making such change have proved inadequate or are so obstructed as to be
unavailable." 22 It has been said that "the locus of positive law-making
power lies with the people of the state" and from there is derived "the right
of the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution." 23
The three (3) clauses that precede the text of the Provisional (Freedom)
Constitution,
24
read:jgc:chanrobles.com.ph
"WHEREAS, the new government under President Corazon C. Aquino was
installed through a direct exercise of the power of the Filipino people
assisted by units of the New Armed Forces of the Philippines;
"WHEREAS, the heroic action of the people was done in defiance of the
provisions
of
the
1973
Constitution,
as
amended;
The resolution of this controversy is not a pleasant task for the Court since
it involves not only members of the next highest court of the land but
persons who are close to members of this Court. But the controversy has to
be resolved. The core issue in this case is whether the present Court of
Appeals is a new court such that it would negate any claim to precedence
or seniority admittedly enjoyed by petitioner in the Court of Appeals and
Intermediate Appellate Court existing prior to Executive Order No. 33 or
whether the present Court of Appeals is merely a continuation of the Court
of Appeals and Intermediate Appellate Court existing prior to said
Executive
Order
No.
33.
"WHEREFORE, I, Corazon C. Aquino, President of the Philippines, by virtue

of the powers vested in me by the sovereign mandate of the people, do
hereby promulgate the following Provisional Constitution."25cralaw:red
These summarize the Aquino governments position that its mandate is
taken from "a direct exercise of the power of the Filipino people." 26
Discussions and opinions of legal experts also proclaim that the Aquino
government was "revolutionary in the sense that it came into existence in
defiance of the existing legal processes" 27 and that it was a revolutionary
government "instituted by the direct action of the people and in opposition
to the authoritarian values and practices of the overthrown government."
28
It is the holding of the Court that the present Court of Appeals is a new
entity, different and distinct from the Court of Appeals or the Intermediate
Appellate Court existing prior to Executive Order No. 33, for it was created
in the wake of the massive reorganization launched by the revolutionary
government of Corazon C. Aquino in the aftermath of the people power
(EDSA)
revolution
in
1986.
A question which naturally comes to mind is whether the then existing

legal order was overthrown by the Aquino government. "A legal order is the
authoritative code of a polity. Such code consists of all the rules found in
the enactments of the organs of the polity. Where the state operates under
a written constitution, its organs may be readily determined from a reading
of its provisions. Once such organs are ascertained, it becomes an easy
matter to locate their enactments. The rules in such enactments, along
with those in the constitution, comprise the legal order of that
constitutional state." 29 It is assumed that the legal order remains as a
"culture system" of the polity as long as the latter endures 30 and that a
point may be reached, however, where the legal system ceases to be
operative as a whole for it is no longer obeyed by the population nor
enforced
by
the
officials.
31
A resolution has been defined as "the complete overthrow of the

established government in any country or state by those who were
previously subject to it" 19 or as "a sudden, radical and fundamental
change in the government or political system, usually effected with
violence or at least some acts of violence." 20 In Kelsens book, General
Theory of Law and State, it is defined as that which "occurs whenever the
legal order of a community is nullified and replaced by a new order . . . a
way
not
prescribed
by
the
first
order
itself."
21
It was through the February 1986 revolution, a relatively peaceful one, and
more popularly known as the "people power revolution" that the Filipino
118
1986,
It is widely known that Mrs. Aquinos rise to the presidency was not due to
constitutional processes; in fact, it was achieved in violation of the
provisions of the 1973 Constitution as a Batasang Pambansa resolution had
earlier declared Mr. Marcos at the winner in the 1986 presidential election.
32 Thus it can be said that the organization of Mrs. Aquinos Government
which was met by little resistance and her control of the state evidenced
by the appointment of the Cabinet and other key officers of the
administration, the departure of the Marcos Cabinet officials, revampt of
the Judiciary and the Military signalled the point where the legal system
then in effect, had ceased to be obeyed by the Filipino.
are
recognized
and
upheld.
SO
Paras,
ORDERED.
Grio-Aquino,
Regalado,
Davide,
Jr.
and
Romero, JJ.,
concur.
Separate Opinions
FELICIANO, J.,
concurring:chanrob1es
virtual
1aw
library
I agree with the conclusion reached in the majority opinion written by my

learned brother, Padilla, J. In particular, I agree that the Court of Appeals
established by Executive Order No. 33 is a new court, and was not merely
the
old
Intermediate
Appellate
Court
with
a
new
label.
The Court holds that the Court of Appeals and Intermediate Appellate Court
existing prior to Executive Order No. 33 phased out as part of the legal
system abolished by the revolution and that the Court of Appeals
established under Executive Order No. 33 was an entirely new court with
appointments thereto having no relation to earlier appointments to the
abolished courts, and that the reference to precedence in rank contained in
the last sentence of Sec. 2, BP Blg. No. 129 as amended by Executive
Order No. 33 refers to prospective situations as distinguished from
retroactive
ones.
If one examines the provisions of B.P. Blg. 129, known as "The Judiciary
Reorganization Act of 1980," relating to the old Intermediate Appellate
Court, it is quite clear that the previously existing Court of Appeals was
abolished and a new court, denominated the Intermediate Appellate Court,
was created. Thus, Section 3 of B.P. Blg. 129 reads as
But even assuming, arguendo, that Executive Order No. 33 did not abolish
the precedence or seniority ranking resulting from previous appointment to
the Court of Appeals or Intermediate Appellate Court existing prior to the
1986 revolution, it is believed that President Aquino as head of then
revolutionary government, could disregard or set aside such precedence or
seniority in ranking when she made her appointments to the reorganized
Court
of
Appeals
in
1986.
"Sec. 3. Organization. There is hereby created an Intermediate Appellate

Court which shall consist of a Presiding Appellate Justice and forty-nine
Associate Appellate Justices who shall be appointed by the President of the
Philippines. The Presiding Appellate Justice shall be so designated in his
appointment, and the Associate Appellate Justices shall have precedence
according to the dates of their respective appointments, or when the
appointments of two or more of them shall bear the same date, according
to the order in which their appointments were issued by the President. Any
member who is reappointed to the Court after rendering service in any
other position in the government shall retain the precedence to which he
was entitled under his original appointment, and his service in Court shall,
to all intents and purposes, be considered as continuous and
uninterrupted."
(Emphasis
supplied)
It is to be noted that, at the time of the issuance of Executive Order No. 33,
President Aquino was still exercising the powers of a revolutionary
government, encompassing both executive and legislative powers, such
that she could, if she so desired, amend, modify or repeal any part of B.P.
Blg. 129 or her own Executive Order No. 33. It should also be remembered
that the same situation was still in force when she issued the 1986
appointments to the Court of Appeals. In other words, President Aquino, at
the time of the issuance of the 1986 appointments, modified or
disregarded the rule embodied in B.P. Blg. 129 as amended by Executive
Order No. 33, on precedence or seniority in the case of the petitioner, for
reasons known only to her. Since the appointment extended by the
President to the petitioner in 1986 for membership in the new Court of
Appeals with its implicit ranking in the roster of justices, was a valid
appointment anchored on the Presidents exercise of her then revolutionary
powers, it is not for the Court at this time to question or correct that
exercise.
Section 44 of the same statute provided as follows:jgc:chanrobles.com.ph

"Sec. 44. Transitory provisions. The provisions of this Act shall be
immediately carried out in accordance with an Executive Order to be
issued by the President. The Court of Appeals, the Courts of First Instance,
the Circuit Criminal Courts, the Juvenile and Domestic Relations Courts, the
Courts of Agrarian Relations, the City Courts, the Municipal Courts, and the
Municipal Circuit Courts shall continue to function as presently constituted
and organized, until the completion of the reorganization provided in this
Act as declared by the President. Upon such declaration, the said courts
shall be deemed automatically abolished and the incumbents thereof shall
cease to hold office. The cases pending in the old Courts shall be
ACCORDINGLY, the Court GRANTS the Motion for Reconsideration and the
seniority rankings of members of the Court of Appeals, including that of the
petitioner, at the time the appointments were made by the President in
119
transferred to the appropriate Courts constituted pursuant to this Act,

together with the pertinent function, records, equipment, property and the
necessary
personnel.
x
The sentence found in Section 3 of B.P. Blg. 129 as amended or re-enacted

through the medium of Section 2 of Executive Order No. 33
"Any Member who is reappointed to the Court after rendering service in
any other position in the government shall retain the precedence to which
he was entitled under his original appointment, and his service in the Court
shall, for all intents and purposes, be considered as continuous and
uninterrupted."cralaw virtua1aw library
(Emphasis supplied)
which my distinguished brother in the Court, Gutierrez, Jr., J., very heavily
stressed, contemplates in my submission the situation of a member of the
new Court of Appeals accepting appointment to some other department or
branch of government, outside the Judiciary, and who later receives an
appointment once again to that same Curt of Appeals. But Mr. Justice
Reynato S. Puno was not in such a situation. The last preceding
appointment to the Judiciary of Mr. Justice Reynato S. Puno was to the then
Intermediate Appellate Court newly created by B.P. Blg. 129. In 1984, he
left that court to become Deputy Minister in the Ministry of Justice. His next
appointment to the Judiciary was not to the old Intermediate Appellate
Court, which by that time had passed on to history. His appointment dated
28 July 1986, was, in my view, as already noted, to the new Court of
Appeals established by Executive Order No. 33. Thus, the last sentence of
Section 3 of B.P. Blg. 129 (before re-enactment by Executive Order No. 33)
afforded no basis for a claim to the same numerical precedence in the new
Court of Appeals that he would have been entitled to had the old
Intermediate Appellate Court not gone out of existence. It is difficult for me
to understand how a claim to a particular position in an order of
precedence can be made where the court itself, to which the new
appointment is made, is a new and distinct court.
Executive Order No. 33, promulgated on 28 July 1986, provided in part as

"Section 2. Section 3, Chapter I of Batas Pambansa Blg. 129, is hereby
amended to read as follows:chanrob1es virtual 1aw library
SEC. 3. Organization There is hereby created a Court of Appeals which
shall consist of a Presiding Justice and fifty Associate Justices who shall be
appointed by the President of the Philippines. The Presiding Justice shall be
so designated in his appointment, and the Associate Justices shall have
precedence according to the dates of their respective appointments, or
when the appointments of two or more of them shall bear the same date,
according to the order in which their appointments were issued by the
President. Any member who is reappointed to the Court after rendering
service in any other position in the government shall retain the precedence
to which he was entitled under his original appointment, and his service in
the Court shall, for all intents and purposes, be considered as continuous
and uninterrupted." (Emphasis supplied)
Although Executive Order No. 33 spoke of amending Section 3, Chapter 1
of B.P. Blg. 129, it will be seen that what really happened was the reenactment of said Section 3, Chapter 1 of B.P. Blg. 129. In other words,
much more happened than simply the renaming of the old Intermediate
Appellate Court into (once again) Court of Appeals. If all that Executive
Order No. 33 wanted to achieve was the relabeling of the old Intermediate
Appellate Court into the "Court of Appeals," there was no need to amend or
re-enact Section 3 of B.P. Blg. 129. For Section 8 of Executive Order No. 33
provided as follows:jgc:chanrobles.com.ph
I vote to grant the Motion for Reconsideration.

BELLOSILLO, J., concurring:chanrob1es virtual 1aw library
I agree with the ponencia of Mr. Justice Padilla, so I vote to grant the
motion for reconsideration of Our Resolution of November 29, 1990. I am
for respecting the seniority ranking of the Associate Justices of the Court of
Appeals at the time they were appointed by the President on July 31, 1986.
"SECTION 8. The terms Intermediate Appellate Court, Presiding Appellate

Justice and Associate Appellate Justice(s) used in the Judiciary
Reorganization Act of 1980 or in any other law or executive order shall
hereafter mean Court of Appeals, Presiding Justice and Associate Justice(s),
respectively."cralaw virtua1aw library
I must admit that, like Mr. Justice Gutierrez, Jr., and Mr. Justice Padilla, it
was not easy for me to decide to participate in the deliberations in this
case considering that it involves esteemed colleagues in the Court of
Appeals. As such, when subject Resolution was promulgated, I did not react
despite the proddings of well-meaning friends. It refused to be dragged
into the "fray" in deference to Justice Reynato S. Puno who would be
adversely affected. I remained firm in my resolve to stay away from the
controversy. It was to me a personal privilege so to do, which i could waive,
as I did.
Thus, President Aquino was quite free, legally speaking to appoint to the
new Court of Appeals whoever in her judgment was fit and proper for
membership in that new court in an order of precedence that she was just
then establishing.chanrobles law library
But circumstances have changed; not that I no longer revere my friendship

120
with Justice Puno, but as a member now of this Court it has become my
duty no longer a mere privilege, much less a right to aid the Court in
resolving this controversy in the fairest possible way, a responsibility I find
no justification to shirk.
No. 5 Mr. Justice Oscar R. Victoriano; and

No. 11 Mr. Justice Reynato S. Puno."cralaw virtua1aw library
On August 1, 1986, at the oath-taking ceremonies for the newly-appointed

members of the Court of Appeals at Malacaang, when I noticed Justice
Puno take a seat on my right, 1 I asked him to transfer to the left where our
senior justices were assigned. I was assuming that he should be on the left
because he was appointed to the old Appellate Court ahead of me. But he
showed me the list where he appeared as No. 26, Justice Lising, No. 25,
and I was No. 24. Since he appeared perturbed with his new rank, I
suggested to him to seek the help of then Justice Secretary Neptali A.
Gonzales, Chairman of the Screening Committee that processed the
appointments of the new members of the Court of Appeals, and who was
then just a meter and a half in front of us. But after talking to Secretary
Gonzales, Justice Puno returned to his original assigned seat. When I asked
him what happened, he simply shrugged his shoulders. Obviously, he failed
in his bid.
While this letter perhaps did not elicit the desired response from Executive
Secretary Arroyo as his answer did not squarely settle the issue, the
message is clear, i.e., Malacaang did not grant the request for correction
of what was perceived to be a "possible oversight", even after it was twice
brought to its attention. Here I am reminded of the principle in procedure
that a motion that is not granted, especially after an unreasonable length
of time, is deemed denied, and the lapse of more than four (4) years before
Justice Puno finally came to Us 3 is reasonably unreasonable.
We then took our oath in the order we were ranked in the list.
I have appointed the Presiding Justice and the Associate Justices of the
Court of Appeals under the following order of seniority:chanrob1es virtual
1aw library
The letter-appointment of President Corazon C. Aquino addressed to then

Chief Justice Claudio Teehankee dated July 31, 1986, in fact categorically
specifies the order of seniority of her appointees, thus
"Dear Mr. Chief Justice.
Some two (2) months or so later, in an En Banc session back in the Court of
Appeals, as we were seated side by side with Justice Puno, 2 I inquired
again from him as to what happened to his request with Malacaang
conveyed through the Presiding Justice for the correction of his ranking.
Justice Puno told me it was not granted.
1. Hon. Emilio A. Gancayco, Presiding Justice . . .

3. Hon. Oscar R. Victoriano, Associate Justice
The letter of then Presiding Justice Emilio A. Gancayco dated August 7,

1986, which was his second in fact on the subject, addressed to Executive
Secretary Joker P. Arroyo, is enlightening and informative
4. Hon. Rodolfo A. Nocon, Associate Justice
"Dear Sir:chanrob1es virtual 1aw library
12. Hon. Jose C. Campos, Jr., Associate Justice . . .
In relation to my letter of August 5, 1986 informing you of the possible

over-sight in the ranking of Mr. Justice REYNATO S. PUNO in his
reappointment as member of this Court, I am furnishing you a certification
of the Clerk of Court to the same effect, and also in relation to the ranking
of Messrs. Rodolfo A. Nocon and Jorge A. Coquia who in accordance with
their original appointment to this Court are more senior than Mr. Justice
Oscar R. Victoriano in the said order.
16. Hon. Luis A. Javellana, Associate Justice . . .
5. Hon. Jorge A. Coquia, Associate Justice . . .
26. Hon. Reynato S. Puno, Associate Justice . . ."cralaw virtua1aw library

x
x"
Considering the circumstances herein narrated, I find it difficult to yield to

the proposition that an error was committed through inadvertence by
Malacaang in the ranking of the justices appointed to the Court of Appeals
on July 31, 1986.
If Her Excellency President Corazon Aquino should decide to rearrange the

ranking of the incumbent justices of this Court in accordance with the
provisions of Section 2, Executive Order # 33 their proper ranking should
be as follows:chanrob1es virtual 1aw library
The above-quoted letter of President Aquino also brings to focus the

ranking of Justice Oscar R. Victoriano who was junior to Justices Nocon and
Coquia in the old Court, as reflected in the letter of Presiding Justice
Gancayco. However, in the letter of the President, Justice Victoriano was
ranked No. 3, while Justices Nocon and Coquia were ranked No. 4 and No.
No. 3 Mr. Justice Rodolfo A. Nocon;

No. 4 Mr. Justice Jorge A. Coquia;
121
5, respectively. Hence, it is not accurate to say that Justice Victoriano was

reinstated to his former rank in the old Court, but was even given a rank
higher than Justices Nocon and Coquia. This "possible oversight" was also
brought to the attention of Malacaang but, like the case of Justice Puno,
no correction was made.chanrobles virtual lawlibrary
nomination for appointment to the Supreme Court even before he started

to serve in the Court of Appeals. Justice Luis A. Javellana was my colleague
in the Social Security System while Justice Reynato S. Puno and I worked
together in the Office of the Solicitor General.
I believe, however, that we can resolve the issues on the basis of the facts
and the applicable law, in the same way that we reverse or affirm the
parties respective ponencias disregarding personal feelings or close
association.
All these clearly support the view of Mr. Justice Padilla in his ponencia, as
well as of Mr. Justice Feliciano in his concurring opinion, that the present
Court of Appeals is an entirely different court, distinct from the old
Intermediate Appellate Court or the former Court of Appeals, with a new
members although some were drawn from the now defunct Intermediate
Appellate Court, and that the "error" referred to by Justice Puno could not
have been only through "inadvertence" but deliberate, otherwise,
Malacaang could have readily effected the correction?
The applicable provision of law in this case was introduced into the
Judiciary Act of 1948 by Rep. Act No. 5204 on June 15, 1968 when it
amended the first paragraph of Section 24 to read:chanrob1es virtual 1aw
library
But whether the "error" was deliberate or committed through inadvertence,

is Our Court the proper venue for the correction? Can We now correct this
alleged error of the appointing authority? Worse, can We direct the Office
of the President to do what is exclusively within its prerogative?
"Provided, however, that any member of the Court of Appeals who has
been reappointed to that court after rendering service in any other branch
of the government shall retain the precedence to which he is entitled under
his original appointment and his service in court shall, to all intents and
purposes, be considered as continuous and uninterrupted . . ."cralaw
virtua1aw library
This brings me to the final point which bothers me still further. If We

sustain the claim that the present Court of Appeals is merely a
continuation of the old Intermediate Appellate Court, or of the old Court of
Appeals, then We may be swarmed with requests not only for re-ranking
but also for reinstatement of those who were not reappointed on July 31,
1986, but against whom no charges have been filed. For then, should they
not be allowed to enjoy their security of tenure as civil servants under the
Constitution?
This provision was reiterated in all subsequent repealing or amendatory

acts and continues to the present. It is found in Batas Pambansa Blg. 129,
Section 3 and in Executive Order No. 33 under President Corazon C. Aquino
reorganized the Court of Appeals.
In the case of Justice Jorge S. Imperial, he was a member of the old

Intermediate Appellate Court who was not reappointed to the new Court of
Appeals on July 31, 1986. There was no charge against him. He was later
reappointed but only on January 2, 1987. Should We also order that he be
reinstated to his former rank in the Intermediate Appellate Court? Then, We
may have to dislodge some of the present division Chairmen of the Court
of Appeals to accommodate him. That would be unsettling, disturbing, and
disruptive of the present system. I do not think We wish this to happen.
I respectfully submit that from 1968 to 1992, there was no single moment
when this provision ceased to exist. It was never repealed and never
disappeared from the law. Everybody, including the appointing power is, of
course, bound by the law.
I agree with Justice Padillas discussion of President Aquinos powers in a
revolutionary government, a government revolutionary in the sense that it
came into existence in defiance of the existing legal processes.
GUTIERREZ, JR., J., dissenting:chanrob1es virtual 1aw library
I, however, believe that the appointments of the Justices of the Court of

Appeals in 1986 were not a personal act of a revolutionary President. Far
from it.
I regret that I have to differ from the position taken by Mr. Justice Padilla
regarding the seniority ranking of Justice Reynato S. Puno in the Court of
Appeals.
First, President Aquinos government ceased to be revolutionary on March

25, 1986 when she promulgated Proclamation No. 3, which she called the
Freedom Constitution. Her government became a constitutional one bound
by the Freedom Constitution and the executive orders issued under its
authority.
I agree that the resolution of the controversy is not a pleasant one for us
since it involves persons who are close to the members of this Court. For
me, the task is particularly difficult because apart from close personal
relationship, I also highly respect the parties considerable talents, abilities
and qualifications. I have known Justice Jose C. Campos, Jr. since my
student days and as a junior member of this Court, I once urged his
122
Second, one significant provision of the Freedom Constitution states that

"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 26, 1986." (Section 2, Article
III, Emphasis supplied).
November 29, 1990 resolution.chanrobles law library : red

We stated in our resolution:jgc:chanrobles.com.ph
"Following this specific provision on seniority, the Screening Committee
recommended the return and reappointment of Justice Puno as Associate
Justice of the New Court of Appeals. He was assigned the seniority rank of
number eleven (11) following Associate Justice Vicente V. Mendoza who
was given the seniority rank of number ten (10). Unfortunately, however,
due to a mistake which can only be inadvertent, the seniority rank of
Justice Puno appears to have been changed from number eleven (11) to
number twenty six (26), after the appointments in the new Court of
Appeals were signed by President Aquino. Through his letter, Justice Puno
prays for the correction of his seniority ranking alleging that he should now
be given the seniority rank of number five (5) instead of number twelve
(12) in the Court of Appeals.
Third, the President implemented the above provision of the Constitution

on July 28, 1986 when she issued Executive Order No. 33 which amended
B.P. 129. As earlier stated, Executive Order No. 33 reiterated verbatim the
provision of B.P. No. 129 which provided for retention of precedence of a
member who is reappointed after a sting in another position in the
government.
President Aquino was bound by the provisions of Executive Order No. 33
because it is a law enacted pursuant to constitutional authority. She could
no longer act as a revolutionary President because there was a
Constitution, and there were statutes under that Constitution, in existence.
We find the petition for correction of ranking by Justice Puno to be

meritorious. The mistake in the ranking of Justice Puno from number eleven
(11) to number twenty six (26) in the 1986 judicial reorganization has to be
corrected, otherwise, there will be a violation of the clear mandate of
Executive Order No. 33 that any member who is reappointed to the Court
after rendering service in any other position in the government shall retain
the precedence to which he was entitled under his original appointment,
and his service in the court shall, for all intents and purposes be considered
as continuous and uninterrupted. In fine, the executive service of Justice
Puno as Deputy Minister of Justice should not adversely affect the
continuity of his service in the judiciary upon his return and appointment
thereto on July 28,1 986. Otherwise, the salutary purpose of Executive
Order No. 33 which is to attract competent members of the judiciary to
serve in other branches of the government without fear of losing their
seniority status in the judiciary in the event of their return thereto would be
defeated . . ." (Res. dtd. 11-29-90, pp. 2-3)
More important, Executive Order No. 33 was enacted precisely to provide

for the reorganization of the Intermediate Appellate Court into the Court of
Appeals. The President intended that every provision of Executive Order
No. 33 should be followed precisely for the purpose for which it was
enacted, namely, reorganization of the appellate court. I cannot
understand the reasoning which says that all provisions of Executive Order
No. 33 must apply in the reorganization of the Court of Appeals except the
provision on retention of seniority by a reappointed member which must be
for the future only.
Even assuming that this one sentence of Executive Order No. 33 was
intended to be prospective, then the President has to follow B.P. No. 129
because Proclamation No. 3, Article IV provides:jgc:chanrobles.com.ph
"SECTION 1. All existing laws, decrees, executive orders, proclamations,
letters of instruction, implementing rules and regulations, and other
executive issuances not inconsistent with this Proclamation shall remain
operative until amended, modified, or repealed by the President or the
regular legislative body to be established under a New Constitution."cralaw
virtua1aw library
Nobody disputes the fact that the Screening Committee headed by the
then Secretary of Justice Neptali Gonzales and a member of which was our
own Justice Leo D. Medialdea ranked Justice Reynato S. Puno as No. 11 in
their recommendation.
When the appointments came out, Mr. Puno was No. 26. This, of course,
violates not only Executive Order No. 33 but also the laws on the same
subject which preceded it.
For us lawyers, there is one signal feature of President Aquinos six years in
the presidency and this is her dedicated personal observance of the rule of
law. Even when some of our decisions nullified her favorite projects, she
unhesitatingly ordered compliance with our interpretation of the law. I
cannot believe that the President would knowingly violate one provision of
a law she promulgated even as she complied with ever other provision of
that same law.
That the President never intended to violate a key provision of law is shown
in the September 17, 1986 letter of Executive Secretary Joker P. Arroyo,
appended to the Reply submitted by Justices Campos and Javellana. The
explanation reads:jgc:chanrobles.com.ph
"17 September 1986
Not only the law but also the facts support the correctness of our
123
Hon. Emilio A. Gancayco
to put him in No. 5 will destroy the chances of those displaced by him who
are older than he to aspire for promotion."cralaw virtua1aw library
Presiding Justice
The fears of the good Justices are unfounded. Except for the Presiding
Justice, a greater number of "junior" Justices have been appointed in the
past ten years to the Supreme Court from the Court of Appeals, than the
most senior Justices of that Court. In other words, there has been more by
passing of senior members than adherence to the seniority listing. In fact,
the latest nominations of the Judicial and Bar Council for position to which
Justice Bellosillo was appointed, included Justice Campos and excluded
Justices Kapunan and Puno. I understand that in the past few vacancies in
this court, Justice Campos has been nominated more often than Justice
Puno.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
Court of Appeals
Manila.
Sir:chanrob1es virtual 1aw library
In reply to your enclosed letter of August 7, 1986, please be informed that
the President had nothing to do with the order of seniority. The list and
order of seniority was submitted by a screening committee and passed on
to the Supreme Court for review.
Our resolution dated November 29, 1990 correcting the seniority ranking of
Justice Puno was a unanimous decision of this Court except for Mr. Justice
Padilla were discussed and fully deliberated upon. Since our resolution is
based on both the facts and the law, I see no reason why we should modify
or set it aside.
Very truly yours,

(SGD.) JOKER P. ARROYO
Executive Secretary"
I, therefore, vote to reiterate the Courts resolution dated November 29,

1990.
When Secretary Arroyo states that the President had nothing to do with the
order or sequence of seniority, it means that she just followed the
recommendations of her own Screening Committee, which
recommendations had already been reviewed by the Supreme Court. She
did not select any recommendees her own. She never deviated from the
recommendations because everybody recommended was appointed. The
change from No. 11 to No. 26 could not have been a deliberate act of the
President as she had nothing to do with the order of seniority of the
Justices she was appointing. The change could only have been an
inadvertence because it was violative not only of the law but also of the
recommendations of her Screening Committee.
Narvasa, C.J., Bidin, Medialdea and Nocon, JJ., concur.

CRUZ, J., dissenting:chanrob1es virtual 1aw library
I join Mr. Justice Gutierrez in his dissent, with these brief additional
remarks.
Sec. 3 of BP 129 laid down the original precedence rule applicable to
members of the Intermediate Appellate Court. This was embodied in Sec. 2
of EO 33 without change except as to the name of the court. The first
provision was not repealed. As Mr. Justice Feliciano points out, it was
merely "re-enacted."cralaw virtua1aw library
There are other matters raised in the letter and reply of Justices Campos
and Javellana which have been answered by Justice Puno in his Comment. I
find no need to comment on them at this time.
I do not think the re-enacted rule was intended to operate prospectively

only. I believe it continues to be available to the former members of the
Intermediate Appellate Court no less than to the members of the Court of
Appeals.
I regret if my answer to the query of Justice Campos led him to be lulled

into inaction. Justice Campos called me up over the telephone inquiring
about the petition of Justice Puno before I was aware that there was such a
petition. I try to read all petitions filed with the court en banc but I do so
only after they are placed in the agenda and are in the next order of
business of a particular session. My staff never places a copy of any
petition on my desk until it is entered in the agenda. It is unfortunate that
Justices Campos, Camilon, dela Fuente, Javellana, Purisima, de Pano, and
Bellosillo were not furnished copies of the letter-petition of Justice Puno but
this is for then Chief Justice Marcelo B. Fernan and Clerk of Court Atty.
Daniel T. Martinez to explain.
It is a well-known canon of construction that apparently conflicting

provisions should be harmonized whenever possible. The ponencia would
instead revoke Sec. 3. of BP 129 even though Sec. 2 of EO 33 has not
repealed but in fact re-enacted it. I would reconcile the two provisions and
give effect to both.
Significantly, Sec. 8 of EO 33 provides that "the term Intermediate
Appellate Court . . . shall hereafter mean Court of Appeals."cralaw
virtua1aw library
Justices Campos and Javellana state that "Justice Puno is 50 years old and
124
DIZON, MARCIA DIZON, ISABELO DOMINGO, HONORATA DOZA,

CAROLINA DUAD, JUSTINIANO EPISTOLA, ROMEO ENCARNACION,
PRIMITIVO ESCANO, ELSA ESPEJO, JUAN ESPEJO, RIZALINA
ESQUILLO, YSMAEL FARINAS, LORNA FAVIS, DAN FERNANDEZ,
JAIME FERNANDEZ, ALFREDO FERRER, MODESTO FERRER, JR.,
EUGENIO FLANDEZ, GUILLERMO FLORENDO, ALFREDO FLORES,
DOMINGA FLORES, ROMEO FLORES, LIGAYA FONTANILLA, MELCHOR
GASMEN, LEILA GASMENA, CONSUELO GAROLAGA, ALFONSO
GOROSPE, CESAR GOROSPE, RICARDO GOROSPE, JR., CARLITO
GUZMAN, ERNESTO DE GUZMAN, THELMA DE GUZMAN, FELIX
HERNANDEZ, SOLIVEN HERNANDO, FRANCISCO HIDALGO, LEONILO
INES, SIXTO JAQUIES, TRINIDAD JAVIER, FERMIN LAGUA,
GUALBERTO LAMBINO, ROMAN LANTING, OSCAR LAZO, ROSARIO
LAZO, JOSEFINA DE LARA, AMBROSIO LAZOL, NALIE LIBATIQUE,
LAMBERTO LLAMAS, ANTONIO LLANES, ROMULA LOPEZ, ADRIANO
LORENZANA, ANTONIO MACARAEG, ILDEFONSO MAGAT, CECILIO
MAGHANOY, ALFONSO MAGSANOC, AVELINA MALLARE, AUGUSTO
MANALO, DOMINADOR MANASAN, BENITO MANECLANG, JR., TIRSO
MANGUMAY, EVELIA MANZANO, HONORANTE MARIANO, DOMINGO
MEDINA, MARTIN MENDOZA, PERFECTO MILANA, EMILIO MILLAN,
GREGORIO MONEGAS, CONSOLACION NAVALTA, NOLI OCAMPO,
VICENTE CLEGARIO, ELPIDIO PALMONES, ARACELI PANGALANGAN,
ISIDORO PANLASIGUI, JR., ARTEMIO PARIS, JR., FEDERICO PAYUMO,
JR., NELIA PAYUMO, BITUEN PAZ, FRANCISCO PENGSON, OSCAR
PERALTA, PROCORRO PERALTA, RAMON PERALTA, MINDA PICHAY,
MAURO PIMENTEL, PRUDENCIO PIMENTEL, LEOPOLDO PUNO,
REYNALDO RABE, ROLANDO REA, CONSTANTINO REA, CECILIA
RICO, CECILIO RILLORAZA, AURORA ROMAN, MERCEDES RUBIO,
URSULA RUPISAN, OLIVIA SABADO, BERNARDO SACRAMENTO, LUZ
SALVADOR, JOSE SAMSON, JR., ROMULA DE LOS SANTOS, ANTONIO
SAYSON, JR., FLORANTE SERIL, MARIO SISON, RUDY SISON,
PROCEDIO TABIN, LUCENA TABISULA, HANNIBAL TAJANO, ENRIQUE
TIANGCO, JR., JUSTINIANO TOBIAS, NYMIA TOLENTINO, CONSTANTE
TOLENTINO, TEODORO TOREBIO, FEDERICO TRINIDAD, JOVENCINTO
TRINIDAD, LAZARO VALDEZ, LUDRALINA VALDEZ, MAXIMINA
VALDEZ, FRANCISCO VELASCO, JR., ROSITA VELASCO, SEVERO
VANTANILLA, VENANCIO VENTIGAN, FELICITAS VENUS, NIEVES DE
VERA, ELISEO VERSOZA, SILVESTRE VILA, GLORIA VILLAMOR,
ALEJANDRO
VELLANUEVA,
DAVID
VILLANUEVA,
CAROLINA
VILLASENOR ORLANDO VILLASTIQUE, MAJELLA VILORIN, ROSARIO
VILORIA, MAY VIRATA, FEDERICO VIRAY, MELBA YAMBAO, MARIO
ZAMORA, AUTENOR ABUEG, SOTERO ACEDO, HONRADO ALBERTO,
FELIPE ALIDO, VICENTE ANCHUELO, LIBERTAD APEROCHO,
MARIANO BALBAGO, MARIO BALMACEDA, DAISY BICENIO, SYLVIA
BUSTAMANTE, RAYMUNDO GEMERINO, LAZARO CAPURAS, ROGELIO
CARUNGCONG, ZACARIAS CAYETANO, JR., LILY CHUA, ANDRES
CRUZ, ARTURO CRUZ, BIENVENIDO ESTEBAN, PABLO JARETA,
MANUEL JOSE, NESTORIA KINTANAR, CLEOPATRIA LAZEM.
MELCHOR LAZO, JESUS LUNA, GASPAR MARINAS, CESAR MAULSON,
MANUEL MEDINA, JESUS PLURAD, LAKAMBINI RAZON, GLORIA
Narvasa, C.J., concurs.
ACCFA v. FLU (insert here)

SUPREME COURT
Manila
EN BANC
G.R. No. L-32052 July 25, 1975

PHILIPPINE
VIRGINIA
TOBACCO
ADMINISTRATION, petitioner,
vs.
COURT OF INDUSTRIAL RELATIONS, REUEL ABRAHAM, MILAGROS
ABUEG, AVELINO ACOSTA, CAROLINA ACOSTA, MARTIN AGSALUD,
JOSEFINA AGUINALDO, GLORIA ALBANO, ANTONIO ALUNING,
COSME ALVAREZ, ISABEL ALZATE, AURORA APUSEN, TOMAS
ARCANGEL, LOURDES ARJONELLO, MANUEL AROMIN, DIONISIO
ASISTIN, JOSE AURE, NICASIO AZNAR, EUGENIO AZURIN, CLARITA
BACUGAN, PIO BALAGOT, HEREDIO BALMACEDA, ESTHER BANAAG,
JOVENCIO BARBERO, MONICO BARBADILLO, HERNANDO BARROZO,
FILIPINA BARROZO, REMEDIO BARTOLOME, ANGELINA BASCOS,
JOSE BATALLA, ALMARIO BAUTISTA, EUGENIO BAUTISTA, JR.,
HERMALO BAUTISTA, JUANITO BAUTISTA, SEVERINO BARBANO,
CAPPIA BARGONIA, ESMERALDA BERNARDEZ, RUBEN BERNARDEZ,
ALFREDO BONGER, TOMAS BOQUIREN, ANGELINA BRAVO, VIRGINIA
BRINGA, ALBERTO BUNEO, SIMEON CABANAYAN, LUCRECIA
CACATIAN, LEONIDES CADAY, ANGELINA CADOTTE, IGNACIO
CALAYCAY, PACIFICO CALUB, RUFINO CALUZA, CALVIN CAMBA,
ALFREDO CAMPOSENO, BAGUILITA CANTO, ALFREDO CARRERA,
PEDRO
CASES,
CRESCENTE
CASIS,
ERNESTO
CASTANEDA,
HERMINIO CASTILLO, JOSE CASTRO, LEONOR CASTRO, MADEO
CASTRO, MARIA PINZON CASTRO, PABLO CATURA, RESTITUTO
CESPADES, FLORA CHACON, EDMUNDO CORPUZ, ESTHER CRUZ,
CELIA CUARESMA, AQUILINO DACAYO, DIONISIA DASALLA,
SOCORRO DELFIN, ABELARDO DIAZ, ARTHUR DIAZ, CYNTHIA
125
IBANEZ, JOSE SANTOS, ELEAZAR SQUI, JOSE TAMAYO, FELIPE

TENORIO, SILVINO UMALI, VICENTE ZARA, SATURNINO GARCIA,
WILLIAM GARCIA, NORMA GARINGARAO, ROSARIO ANTONIO,
RUBEN BAUTISTA, QUIRINO PUESTO, NELIA M. GOMERI, OSCAR R.
LANUZA, AURORA M. LINDAYA, GREGORIO MOGSINO, JACRM B.
PAPA, GREGORIO R. RIEGO, TERESITA N. ROZUL, MAGTANGOL
SAMALA, PORFIRIO AGOCOLIS, LEONARDO MONTE, HERMELINO
PATI, ALFREDO PAYOYO, PURIFICACION ROJAS, ODANO TEANO,
RICARDO SANTIAGO, and MARCELO MANGAHAS, respondents.
overtime compensation in accordance with Commonwealth Act No. 444.

Their prayer was for the differential between the amount actually paid to
them and the amount allegedly due them. 6 There was an answer filed by
petitioner Philippine Virginia Tobacco Administration denying the
allegations and raising the special defenses of lack of a cause of action and
lack of jurisdiction. 7 The issues were thereafter joined, and the case set for
trial, with both parties presenting their evidence. 8 After the parties
submitted the case for decision, the then Presiding Judge Arsenio T.
Martinez of respondent Court issued an order sustaining the claims of
private respondents for overtime services from December 23, 1963 up to
the date the decision was rendered on March 21, 1970, and directing
petitioner to pay the same, minus what it had already paid. 9 There was a
motion for reconsideration, but respondent Court en banc denied the
same. 10 Hence this petition for certiorari.
Gov't. Corp. Counsel Leopoldo M. Abellera, Trial Attorneys Manuel M.

Lazaro and Vicente Constantine, Jr., for petitioner.
Renato B. Kare and Simeon C. Sato for private respondents.
Petitioner Philippine Virginia Tobacco Administration, as had been noted,

would predicate its plea for the reversal of the order complained of on the
basic proposition that it is beyond the jurisdiction of respondent Court as it
is exercising governmental functions and that it is exempt from the
operation of Commonwealth Act No. 444. 11 While, to repeat, its submission
as to the governmental character of its operation is to be given credence,
it is not a necessary consequence that respondent Court is devoid of
jurisdiction. Nor could the challenged order be set aside on the additional
argument that the Eight-Hour Labor Law is not applicable to it. So it was, at
the outset, made clear.
FERNANDO, J.:
The principal issue that calls for resolution in this appeal by certiorari from
an order of respondent Court of Industrial Relations is one of constitutional
significance. It is concerned with the expanded role of government
necessitated by the increased responsibility to provide for the general
welfare. More specifically, it deals with the question of whether petitioner,
the Philippine Virginia Tobacco Administration, discharges governmental
and not proprietary functions. The landmark opinion of the then Justice,
row Chief Justice, Makalintal in Agricultural Credit and Cooperative
Financing Administration v. Confederation of Unions in Government
Corporations and offices, points the way to the right answer. 1 It interpreted
the then fundamental law as hostile to the view of a limited or negative
state. It is antithetical to the laissez faire concept. For as noted in an earlier
decision, the welfare state concept "is not alien to the philosophy of [the
1935] Constitution." 2 It is much more so under the present Charter, which
is impressed with an even more explicit recognition of social and economic
rights. 3 There is manifest, to recall Laski, "a definite increase in the
profundity of the social conscience," resulting in "a state which seeks to
realize more fully the common good of its members." 4 It does not
necessarily follow, however, just because petitioner is engaged in
governmental rather than proprietary functions, that the labor controversy
was beyond the jurisdiction of the now defunct respondent Court. Nor is
the objection raised that petitioner does not come within the coverage of
the Eight-Hour Labor Law persuasive. 5 We cannot then grant the reversal
sought. We affirm.
1. A reference to the enactments creating petitioner corporation suffices to

demonstrate the merit of petitioner's plea that it performs governmental
and not proprietary functions. As originally established by Republic Act No.
2265, 12its purposes and objectives were set forth thus: "(a) To promote the
effective merchandising of Virginia tobacco in the domestic and foreign
markets so that those engaged in the industry will be placed on a basis of
economic security; (b) To establish and maintain balanced production and
consumption of Virginia tobacco and its manufactured products, and such
marketing conditions as will insure and stabilize the price of a level
sufficient to cover the cost of production plus reasonable profit both in the
local as well as in the foreign market; (c) To create, establish, maintain, and
operate processing, warehousing and marketing facilities in suitable
centers and supervise the selling and buying of Virginia tobacco so that the
farmers will enjoy reasonable prices that secure a fair return of their
investments; (d) To prescribe rules and regulations governing the grading,
classifying, and inspecting of Virginia tobacco; and (e) To improve the living
and economic conditions of the people engaged in the tobacco
industry." 13 The amendatory statute, Republic Act No. 4155, 14 renders
even more evident its nature as a governmental agency. Its first section on
the declaration of policy reads: "It is declared to be the national policy, with
respect to the local Virginia tobacco industry, to encourage the production
of local Virginia tobacco of the qualities needed and in quantities
marketable in both domestic and foreign markets, to establish this industry
The facts are undisputed. On December 20, 1966, claimants, now private
respondents, filed with respondent Court a petition wherein they alleged
their employment relationship, the overtime services in excess of the
regular eight hours a day rendered by them, and the failure to pay them
126
on an efficient and economic basis, and, to create a climate conducive to

local cigarette manufacture of the qualities desired by the consuming
public, blending imported and native Virginia leaf tobacco to improve the
quality of locally manufactured cigarettes." 15 The objectives are set forth
thus: "To attain this national policy the following objectives are hereby
adopted: 1. Financing; 2. Marketing; 3. The disposal of stocks of the
Agricultural Credit Administration (ACA) and the Philippine Virginia Tobacco
Administration (PVTA) at the best obtainable prices and conditions in order
that a reinvigorated Virginia tobacco industry may be established on a
sound basis; and 4. Improving the quality of locally manufactured
cigarettes through blending of imported and native Virginia leaf tobacco;
such importation with corresponding exportation at a ratio of one kilo of
imported to four kilos of exported Virginia tobacco, purchased by the
importer-exporter from the Philippine Virginia Tobacco Administration." 16
Corporation,21 based on the Wilsonian classification of the tasks incumbent

on government into constituent and ministrant in accordance with
the laissez faire principle. That concept, then dominant in economics, was
carried into the governmental sphere, as noted in a textbook on political
science, 22 the first edition of which was published in 1898, its author being
the then Professor, later American President, Woodrow Wilson. He took
pains to emphasize that what was categorized by him as constituent
functions had its basis in a recognition of what was demanded by the
"strictest [concept of] laissez faire, [as they] are indeed the very bonds of
society." 23 The other functions he would minimize as ministrant or
optional.
It is a matter of law that in the Philippines, the laissez faire principle hardly
commanded the authoritative position which at one time it held in the
United States. As early as 1919, Justice Malcolm in Rubi v. Provincial
Board 24 could affirm: "The doctrines of laissez faire and of unrestricted
freedom of the individual, as axioms of economic and political theory, are
of the past. The modern period has shown a widespread belief in the
amplest possible demonstration of government activity." 25 The 1935
Constitution, as was indicated earlier, continued that approach. As noted
in Edu v. Ericta:26 "What is more, to erase any doubts, the Constitutional
Convention saw to it that the concept of laissez-faire was rejected. It
entrusted to our government the responsibility of coping with social and
economic problems with the commensurate power of control over
economic affairs. Thereby it could live up to its commitment to promote
the general welfare through state action." 27 Nor did the opinion in Edu stop
there: "To repeat, our Constitution which took effect in 1935 erased
whatever doubts there might be on that score. Its philosophy is a
repudiation of laissez-faire. One of the leading members of the
Constitutional Convention, Manuel A. Roxas, later the first President of the
Republic, made it clear when he disposed of the objection of Delegate Jose
Reyes of Sorsogon, who noted the "vast extensions in the sphere of
governmental functions" and the "almost unlimited power to interfere in
the affairs of industry and agriculture as well as to compete with existing
business" as "reflections of the fascination exerted by [the then] current
tendencies' in other jurisdictions. He spoke thus: "My answer is that this
constitution has a definite and well defined philosophy, not only political
but social and economic.... If in this Constitution the gentlemen will find
declarations of economic policy they are there because they are necessary
to safeguard the interest and welfare of the Filipino people because we
believe that the days have come when in self-defense, a nation may
provide in its constitution those safeguards, the patrimony, the freedom to
grow, the freedom to develop national aspirations and national interests,
not to be hampered by the artificial boundaries which a constitutional
provision automatically imposes." 28
It is thus readily apparent from a cursory perusal of such statutory

provisions why petitioner can rightfully invoke the doctrine announced in
the leading Agricultural Credit and Cooperative Financing Administration
decision 17 and why the objection of private respondents with its overtones
of the distinction between constituent and ministrant functions of
governments as set forth in Bacani v. National Coconut Corporation 18 if
futile. The irrelevance of such a distinction considering the needs of the
times was clearly pointed out by the present Chief Justice, who took note,
speaking of the reconstituted Agricultural Credit Administration, that
functions of that sort "may not be strictly what President Wilson described
as "constituent" (as distinguished from "ministrant"),such as those relating
to the maintenance of peace and the prevention of crime, those regulating
property and property rights, those relating to the administration of justice
and the determination of political duties of citizens, and those relating to
national defense and foreign relations. Under this traditional classification,
such constituent functions are exercised by the State as attributes of
sovereignty, and not merely to promote the welfare, progress and
prosperity of the people these latter functions being ministrant, the
exercise
of
which
is
optional
on
the
part
of
the
government." 19 Nonetheless, as he explained so persuasively: "The
growing complexities of modern society, however, have rendered this
traditional classification of the functions of government quite unrealistic,
not to say obsolete. The areas which used to be left to private enterprise
and initiative and which the government was called upon to enter
optionally, and only "because it was better equipped to administer for the
public welfare than is any private individual or group of individuals",
continue to lose their well-defined boundaries and to be absorbed within
activities that the government must undertake in its sovereign capacity if it
is to meet the increasing social challenges of the times. Here as almost
everywhere else the tendency is undoubtedly towards a greater
socialization of economic forces. Here of course this development was
envisioned, indeed adopted as a national policy, by the Constitution itself
in its declaration of principle concerning the promotion of social
justice." 20 Thus was laid to rest the doctrine in Bacani v. National Coconut
It would be then to reject what was so emphatically stressed in the

Agricultural Credit Administration decision about which the observation
was earlier made that it reflected the philosophy of the 1935 Constitution
127
and is even more in consonance with the expanded role of government

accorded recognition in the present Charter if the plea of petitioner that it
discharges governmental function were not heeded. That path this Court is
not prepared to take. That would be to go backward, to retreat rather than
to advance. Nothing can thus be clearer than that there is no constitutional
obstacle to a government pursuing lines of endeavor, formerly reserved for
private enterprise. This is one way, in the language of Laski, by which
through such activities, "the harsh contract which [does] obtain between
the levels of the rich and the poor" may be minimized. 29 It is a response to
a trend noted by Justice Laurel in Calalang v. Williams 30 for the
humanization of laws and the promotion of the interest of all component
elements of society so that man's innate aspirations, in what was so
felicitously termed by the First Lady as "a compassionate society" be
attained. 31
Relations." 38 Reference to a number of decisions which recognized in the

then respondent Court the jurisdiction to determine labor controversies by
government-owned or controlled corporations lends to support to such an
approach. 39 Nor could it be explained only on the assumption that
proprietary rather than governmental functions did call for such a
conclusion. It is to be admitted that such a view was not previously bereft
of plausibility. With the aforecited Agricultural Credit and Cooperative
Financing Administration decision rendering obsolete the Bacani doctrine, it
has, to use a Wilsonian phrase, now lapsed into "innocuous
desuetude." 40 Respondent Court clearly was vested with jurisdiction.
3. The contention of petitioner that the Eight-Hour Labor Law 41 does not
apply to it hardly deserves any extended consideration. There is an air of
casualness in the way such an argument was advanced in its petition for
review as well as in its brief. In both pleadings, it devoted less than a full
page to its discussion. There is much to be said for brevity, but not in this
case. Such a terse and summary treatment appears to be a reflection more
of the inherent weakness of the plea rather than the possession of an
advocate's enviable talent for concision. It did cite Section 2 of the Act, but
its very language leaves no doubt that "it shall apply to all persons
employed in any industry or occupation, whether public or
private ... ." 42Nor are private respondents included among the employees
who are thereby barred from enjoying the statutory benefits. It
cited Marcelo v. Philippine National Red Cross 43 and Boy Scouts of the
Philippines v. Araos. 44 Certainly, the activities to which the two above
public corporations devote themselves can easily be distinguished from
that engaged in by petitioner. A reference to the pertinent sections of both
Republic Acts 2265 and 2155 on which it relies to obtain a ruling as to its
governmental character should render clear the differentiation that exists.
If as a result of the appealed order, financial burden would have to be
borne by petitioner, it has only itself to blame. It need not have required
private respondents to render overtime service. It can hardly be surmised
that one of its chief problems is paucity of personnel. That would indeed be
a cause for astonishment. It would appear, therefore, that such an
objection based on this ground certainly cannot suffice for a reversal. To
repeat, respondent Court must be sustained.
2. The success that attended the efforts of petitioner to be adjudged as

performing governmental rather than proprietary functions cannot militate
against respondent Court assuming jurisdiction over this labor dispute. So
it was mentioned earlier. As far back as Tabora v. Montelibano, 32 this
Court, speaking through Justice Padilla, declared: The NARIC was
established by the Government to protect the people against excessive or
unreasonable rise in the price of cereals by unscrupulous dealers. With that
main objective there is no reason why its function should not be deemed
governmental. The Government owes its very existence to that aim and
purpose to protect the people." 33 In a subsequent case, Naric Worker's
Union v. Hon. Alvendia, 34 decided four years later, this Court, relying
on Philippine Association of Free Labor Unions v. Tan, 35 which specified the
cases within the exclusive jurisdiction of the Court of Industrial Relations,
included among which is one that involves hours of employment under the
Eight-Hour Labor Law, ruled that it is precisely respondent Court and not
ordinary courts that should pass upon that particular labor controversy. For
Justice J. B. L. Reyes, the ponente, the fact that there were judicial as well
as administrative and executive pronouncements to the effect that the
Naric was performing governmental functions did not suffice to confer
competence on the then respondent Judge to issue a preliminary injunction
and to entertain a complaint for damages, which as pointed out by the
labor union, was connected with an unfair labor practice. This is
emphasized by the dispositive portion of the decision: "Wherefore, the
restraining orders complained of, dated May 19, 1958 and May 27, 1958,
are set aside, and the complaint is ordered dismissed, without prejudice to
the National Rice and Corn Corporation's seeking whatever remedy it is
entitled to in the Court of Industrial Relations." 36 Then, too, in a case
involving
petitioner
itself,
Philippine
Virginia
Tobacco
Administration,37 where the point in dispute was whether it was respondent
Court or a court of first instance that is possessed of competence in a
declaratory relief petition for the interpretation of a collective bargaining
agreement, one that could readily be thought of as pertaining to the
judiciary, the answer was that "unless the law speaks clearly and
unequivocally, the choice should fall on the Court of Industrial
WHEREFORE, the appealed Order of March 21, 1970 and the Resolution of
respondent Court en banc of May 8, 1970 denying a motion for
reconsideration are hereby affirmed. The last sentence of the Order of
March 21, 1970 reads as follows: "To find how much each of them [private
respondents] is entitled under this judgment, the Chief of the Examining
Division, or any of his authorized representative, is hereby directed to
make a reexamination of records, papers and documents in the possession
of respondent PVTA pertinent and proper under the premises and to submit
his report of his findings to the Court for further disposition thereof."
Accordingly, as provided by the New Labor Code, this case is referred to
the National Labor Relations Commission for further proceedings
conformably to law. No costs.
128
Makalintal, C.J., Castro, Barredo, Antonio, Esguerra, Aquino, Concepcion Jr.

and Martin, JJ., concur.
The respondent judge refused to take cognizance of and continue the

proceedings in said case on the ground that the proclamation issued on
October 23, 1944, by General Douglas MacArthur had the effect of
invalidating and nullifying all judicial proceedings and judgements of the
court of the Philippines under the Philippine Executive Commission and the
Republic of the Philippines established during the Japanese military
occupation, and that, furthermore, the lower courts have no jurisdiction to
take cognizance of and continue judicial proceedings pending in the courts
of the defunct Republic of the Philippines in the absence of an enabling law
granting such authority. And the same respondent, in his answer and
memorandum filed in this Court, contends that the government established
in the Philippines during the Japanese occupation were no de
facto governments.
Makasiar, Muoz Palma, JJ., took no part.

Teehankee J., is on leave.
On January 2, 1942, the Imperial Japanese Forces occupied the City of

Manila, and on the next day their Commander in Chief proclaimed "the
Military Administration under law over the districts occupied by the Army."
In said proclamation, it was also provided that "so far as the Military
Administration permits, all the laws now in force in the Commonwealth, as
well as executive and judicial institutions, shall continue to be effective for
the time being as in the past," and "all public officials shall remain in their
present posts and carry on faithfully their duties as before."

SUPREME COURT
Manila
A civil government or central administration organization under the name

of "Philippine Executive Commission was organized by Order No. 1 issued
on January 23, 1942, by the Commander in Chief of the Japanese Forces in
the Philippines, and Jorge B. Vargas, who was appointed Chairman thereof,
was instructed to proceed to the immediate coordination of the existing
central administrative organs and judicial courts, based upon what had
existed therefore, with approval of the said Commander in Chief, who was
to exercise jurisdiction over judicial courts.
EN BANC
G.R. No. L-5
September 17, 1945
CO KIM CHAM (alias CO KIM CHAM), petitioner,

vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First
Instance of Manila, respondents.1
The Chairman of the Executive Commission, as head of the central

administrative organization, issued Executive Orders Nos. 1 and 4, dated
January 30 and February 5, 1942, respectively, in which the Supreme
Court, Court of Appeals, Courts of First Instance, and the justices of the
peace and municipal courts under the Commonwealth were continued with
the same jurisdiction, in conformity with the instructions given to the said
Chairman of the Executive Commission by the Commander in Chief of
Japanese Forces in the Philippines in the latter's Order No. 3 of February 20,
1942, concerning basic principles to be observed by the Philippine
Executive Commission in exercising legislative, executive and judicial
powers. Section 1 of said Order provided that "activities of the
administration organs and judicial courts in the Philippines shall be based
upon the existing statutes, orders, ordinances and customs. . . ."
Marcelino Lontok for petitioner.

P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA, J.:
This petition for mandamus in which petitioner prays that the respondent
judge of the lower court be ordered to continue the proceedings in civil
case No. 3012 of said court, which were initiated under the regime of the
so-called Republic of the Philippines established during the Japanese
military occupation of these Islands.
On October 14, 1943, the so-called Republic of the Philippines was

inaugurated, but no substantial change was effected thereby in the
129
organization and jurisdiction of the different courts that functioned during

the Philippine Executive Commission, and in the laws they administered
and enforced.
pending in said courts at the time the Philippines were reoccupied and
liberated by the United States and Filipino forces, and the Commonwealth
of the Philippines were reestablished in the Islands.
On October 23, 1944, a few days after the historic landing in Leyte,
General Douglas MacArthur issued a proclamation to the People of the
Philippines which declared:
We shall now proceed to consider the first question, that is, whether or not
under the rules of international law the judicial acts and proceedings of the
courts established in the Philippines under the Philippine Executive
Commission and the Republic of the Philippines were good and valid and
remained good and valid even after the liberation or reoccupation of the
Philippines by the United States and Filipino forces.
1. That the Government of the Commonwealth of the Philippines is,

subject to the supreme authority of the Government of the United
States, the sole and only government having legal and valid
jurisdiction over the people in areas of the Philippines free of
enemy occupation and control;
1. It is a legal truism in political and international law that all acts and
proceedings of the legislative, executive, and judicial departments of a de
facto government are good and valid. The question to be determined is
whether or not the governments established in these Islands under the
names of the Philippine Executive Commission and Republic of the
Philippines during the Japanese military occupation or regime were de
facto governments. If they were, the judicial acts and proceedings of those
governments remain good and valid even after the liberation or
reoccupation of the Philippines by the American and Filipino forces.
2. That the laws now existing on the statute books of the

Commonwealth of the Philippines and the regulations promulgated
pursuant thereto are in full force and effect and legally binding
upon the people in areas of the Philippines free of enemy
occupation and control; and
3. That all laws, regulations and processes of any other
government in the Philippines than that of the said Commonwealth
are null and void and without legal effect in areas of the Philippines
free of enemy occupation and control.
There are several kinds of de facto governments. The first, or

government de facto in a proper legal sense, is that government that gets
possession and control of, or usurps, by force or by the voice of the
majority, the rightful legal governments and maintains itself against the
will of the latter, such as the government of England under the
Commonwealth, first by Parliament and later by Cromwell as Protector. The
second is that which is established and maintained by military forces who
invade and occupy a territory of the enemy in the course of war, and which
is denominated a government of paramount force, as the cases of Castine,
in Maine, which was reduced to British possession in the war of 1812, and
Tampico, Mexico, occupied during the war with Mexico, by the troops of the
United States. And the third is that established as an independent
government by the inhabitants of a country who rise in insurrection against
the parent state of such as the government of the Southern Confederacy in
revolt not concerned in the present case with the first kind, but only with
the second and third kinds of de facto governments.
On February 3, 1945, the City of Manila was partially liberated and on

February 27, 1945, General MacArthur, on behalf of the Government of the
United States, solemnly declared "the full powers and responsibilities under
the Constitution restored to the Commonwealth whose seat is here
established as provided by law."
In the light of these facts and events of contemporary history, the principal
questions to be resolved in the present case may be reduced to the
following:(1) Whether the judicial acts and proceedings of the court
existing in the Philippines under the Philippine Executive Commission and
the Republic of the Philippines were good and valid and remained so even
after the liberation or reoccupation of the Philippines by the United States
and Filipino forces; (2)Whether the proclamation issued on October 23,
1944, by General Douglas MacArthur, Commander in Chief of the United
States Army, in which he declared "that all laws, regulations and processes
of any of the government in the Philippines than that of the said
Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control," has invalidated all
judgements and judicial acts and proceedings of the said courts; and (3) If
the said judicial acts and proceedings have not been invalidated by said
proclamation, whether the present courts of the Commonwealth, which
were the same court existing prior to, and continued during, the Japanese
military occupation of the Philippines, may continue those proceedings
Speaking of government "de facto" of the second kind, the Supreme Court
of the United States, in the case of Thorington vs. Smith (8 Wall., 1), said:
"But there is another description of government, called also by publicists a
government de facto, but which might, perhaps, be more aptly
denominated a government of paramount force. Its distinguishing
characteristics are (1), that its existence is maintained by active military
power with the territories, and against the rightful authority of an
established and lawful government; and (2), that while it exists it
necessarily be obeyed in civil matters by private citizens who, by acts of
obedience rendered in submission to such force, do not become
130
responsible, or wrongdoers, for those acts, though not warranted by the

laws of the rightful government. Actual governments of this sort are
established over districts differing greatly in extent and conditions. They
are usually administered directly by military authority, but they may be
administered, also, civil authority, supported more or less directly by
military force. . . . One example of this sort of government is found in the
case of Castine, in Mine, reduced to British possession in the war of 1812 . .
. U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case of
Tampico, occupied during the war with Mexico, by the troops of the United
States . . . Fleming vs. Page (9 Howard, 614). These were cases of
temporary possessions of territory by lawfull and regular governments at
war with the country of which the territory so possessed was part."
and govern the territory of the enemy while in its military possession, is
one of the incidents of war, and flows directly from the right to conquer.
We, therefore, do not look to the Constitution or political institutions of the
conqueror, for authority to establish a government for the territory of the
enemy in his possession, during its military occupation, nor for the rules by
which the powers of such government are regulated and limited. Such
authority and such rules are derived directly from the laws war, as
established by the usage of the of the world, and confirmed by the writings
of publicists and decisions of courts in fine, from the law of nations. . . .
The municipal laws of a conquered territory, or the laws which regulate
private rights, continue in force during military occupation, excepts so far
as they are suspended or changed by the acts of conqueror. . . . He,
nevertheless, has all the powers of a de facto government, and can at his
pleasure either change the existing laws or make new ones."
The powers and duties of de facto governments of this description are

regulated in Section III of the Hague Conventions of 1907, which is a
revision of the provisions of the Hague Conventions of 1899 on the same
subject of said Section III provides "the authority of the legislative power
having actually passed into the hands of the occupant, the latter shall take
steps in his power to reestablish and insure, as far as possible, public order
and safety, while respecting, unless absolutely prevented, the laws in force
in the country."
And applying the principles for the exercise of military authority in an

occupied territory, which were later embodied in the said Hague
Conventions, President McKinley, in his executive order to the Secretary of
War of May 19,1898, relating to the occupation of the Philippines by United
States forces, said in part: "Though the powers of the military occupant are
absolute and supreme, and immediately operate upon the political
condition of the inhabitants, the municipal laws of the conquered territory,
such as affect private rights of person and property and provide for the
punishment of crime, are considered as continuing in force, so far as they
are compatible with the new order of things, until they are suspended or
superseded by the occupying belligerent; and in practice they are not
usually abrogated, but are allowed to remain in force and to be
administered by the ordinary tribunals, substantially as they were before
the occupation. This enlightened practice is, so far as possible, to be
adhered to on the present occasion. The judges and the other officials
connected with the administration of justice may, if they accept the
authority of the United States, continue to administer the ordinary law of
the land as between man and man under the supervision of the American
Commander in Chief." (Richardson's Messages and Papers of President, X,
p. 209.)
According to the precepts of the Hague Conventions, as the belligerent

occupant has the right and is burdened with the duty to insure public order
and safety during his military occupation, he possesses all the powers of
a de factogovernment, and he can suspended the old laws and promulgate
new ones and make such changes in the old as he may see fit, but he is
enjoined to respect, unless absolutely prevented by the circumstances
prevailing in the occupied territory, the municipal laws in force in the
country, that is, those laws which enforce public order and regulate social
and commercial life of the country. On the other hand, laws of a political
nature or affecting political relations, such as, among others, the right of
assembly, the right to bear arms, the freedom of the press, and the right to
travel freely in the territory occupied, are considered as suspended or in
abeyance during the military occupation. Although the local and civil
administration of justice is suspended as a matter of course as soon as a
country is militarily occupied, it is not usual for the invader to take the
whole administration into his own hands. In practice, the local ordinary
tribunals are authorized to continue administering justice; and judges and
other judicial officers are kept in their posts if they accept the authority of
the belligerent occupant or are required to continue in their positions under
the supervision of the military or civil authorities appointed, by the
Commander in Chief of the occupant. These principles and practice have
the sanction of all publicists who have considered the subject, and have
been asserted by the Supreme Court and applied by the President of the
United States.
As to "de facto" government of the third kind, the Supreme Court of the
United States, in the same case of Thorington vs. Smith, supra, recognized
the government set up by the Confederate States as a de
factogovernment. In that case, it was held that "the central government
established for the insurgent States differed from the temporary
governments at Castine and Tampico in the circumstance that its authority
did no originate in lawful acts of regular war; but it was not, on the
account, less actual or less supreme. And we think that it must be classed
among the governments of which these are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of
the United States, discussing the validity of the acts of the Confederate
States, said: "The same general form of government, the same general
The doctrine upon this subject is thus summed up by Halleck, in his work
on International Law (Vol. 2, p. 444): "The right of one belligerent to occupy
131
laws for the administration of justice and protection of private rights, which
had existed in the States prior to the rebellion, remained during its
continuance and afterwards. As far as the Acts of the States do not impair
or tend to impair the supremacy of the national authority, or the just rights
of citizens under the Constitution, they are, in general, to be treated as
valid and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law.
ed., 657): "The existence of a state of insurrection and war did not loosen
the bonds of society, or do away with civil government or the regular
administration of the laws. Order was to be preserved, police regulations
maintained, crime prosecuted, property protected, contracts enforced,
marriages celebrated, estates settled, and the transfer and descent of
property regulated, precisely as in the time of peace. No one, that we are
aware of, seriously questions the validity of judicial or legislative Acts in
the insurrectionary States touching these and kindered subjects, where
they were not hostile in their purpose or mode of enforcement to the
authority of the National Government, and did not impair the rights of
citizens under the Constitution'. The same doctrine has been asserted in
numerous other cases."
consequence whether such government be called a military or civil

government. Its character is the same and the source of its authority the
same. In either case it is a government imposed by the laws of war, and so
far it concerns the inhabitants of such territory or the rest of the world,
those laws alone determine the legality or illegality of its acts." (Vol. 2, p.
466.) The fact that the Philippine Executive Commission was a civil and not
a military government and was run by Filipinos and not by Japanese
nationals, is of no consequence. In 1806, when Napoleon occupied the
greater part of Prussia, he retained the existing administration under the
general direction of a french official (Langfrey History of Napoleon, 1, IV,
25); and, in the same way, the Duke of Willington, on invading France,
authorized the local authorities to continue the exercise of their functions,
apparently without appointing an English superior. (Wellington Despatches,
XI, 307.). The Germans, on the other hand, when they invaded France in
1870, appointed their own officials, at least in Alsace and Lorraine, in every
department of administration and of every rank. (Calvo, pars. 2186-93;
Hall, International Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and
organized as a sovereign state independent from any other government by
the Filipino people, was, in truth and reality, a government established by
the belligerent occupant or the Japanese forces of occupation. It was of the
same character as the Philippine Executive Commission, and the ultimate
source of its authority was the same the Japanese military authority and
government. As General MacArthur stated in his proclamation of October
23, 1944, a portion of which has been already quoted, "under enemy
duress, a so-called government styled as the 'Republic of the Philippines'
was established on October 14, 1943, based upon neither the free
expression of the people's will nor the sanction of the Government of the
United States." Japan had no legal power to grant independence to the
Philippines or transfer the sovereignty of the United States to, or recognize
the latent sovereignty of, the Filipino people, before its military occupation
and possession of the Islands had matured into an absolute and permanent
dominion or sovereignty by a treaty of peace or other means recognized in
the law of nations. For it is a well-established doctrine in International Law,
recognized in Article 45 of the Hauge Conventions of 1907 (which prohibits
compulsion of the population of the occupied territory to swear allegiance
to the hostile power), the belligerent occupation, being essentially
provisional, does not serve to transfer sovereignty over the territory
controlled although the de juregovernment is during the period of
occupancy deprived of the power to exercise its rights as such. (Thirty
Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4
Wheat., 246; Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwell, 182 U.
S., 345.) The formation of the Republic of the Philippines was a scheme
contrived by Japan to delude the Filipino people into believing in the
apparent magnanimity of the Japanese gesture of transferring or turning
over the rights of government into the hands of Filipinos. It was established
under the mistaken belief that by doing so, Japan would secure the
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400),
held: "That what occured or was done in respect of such matters under the
authority of the laws of these local de facto governments should not be
disregarded or held to be invalid merely because those governments were
organized in hostility to the Union established by the national Constitution;
this, because the existence of war between the United States and the
Confederate States did not relieve those who are within the insurrectionary
lines from the necessity of civil obedience, nor destroy the bonds of society
nor do away with civil government or the regular administration of the
laws, and because transactions in the ordinary course of civil society as
organized within the enemy's territory although they may have indirectly
or remotely promoted the ends of the de facto or unlawful government
organized to effect a dissolution of the Union, were without blame 'except
when proved to have been entered into with actualintent to further
invasion or insurrection:'" and "That judicial and legislative acts in the
respective states composing the so-called Confederate States should be
respected by the courts if they were not hostile in their purpose or mode of
enforcement to the authority of the National Government, and did not
impair the rights of citizens under the Constitution."
In view of the foregoing, it is evident that the Philippine Executive
Commission, which was organized by Order No. 1, issued on January 23,
1942, by the Commander of the Japanese forces, was a civil government
established by the military forces of occupation and therefore a de
facto government of the second kind. It was not different from the
government established by the British in Castine, Maine, or by the United
States in Tampico, Mexico. As Halleck says, "The government established
over an enemy's territory during the military occupation may exercise all
the powers given by the laws of war to the conqueror over the conquered,
and is subject to all restrictions which that code imposes. It is of little
132
cooperation or at least the neutrality of the Filipino people in her war

against the United States and other allied nations.
same time by private persons under the sanction of municipal law, remain
good. Were it otherwise, the whole social life of a community would be
paralyzed by an invasion; and as between the state and the individuals the
evil would be scarcely less, it would be hard for example that payment
of taxes made under duress should be ignored, and it would be contrary to
the general interest that the sentences passed upon criminals should be
annulled by the disappearance of the intrusive government ." (Hall,
International Law, 7th ed., p. 518.) And when the occupation and the
abandonment have been each an incident of the same war as in the
present case, postliminy applies, even though the occupant has acted as
conqueror and for the time substituted his own sovereignty as the
Japanese intended to do apparently in granting independence to the
Philippines and establishing the so-called Republic of the Philippines.
(Taylor, International Law, p. 615.)
Indeed, even if the Republic of the Philippines had been established by the
free will of the Filipino who, taking advantage of the withdrawal of the
American forces from the Islands, and the occupation thereof by the
Japanese forces of invasion, had organized an independent government
under the name with the support and backing of Japan, such government
would have been considered as one established by the Filipinos in
insurrection or rebellion against the parent state or the Unite States. And
as such, it would have been a de facto government similar to that
organized by the confederate states during the war of secession and
recognized as such by the by the Supreme Court of the United States in
numerous cases, notably those of Thorington vs. Smith, Williams vs. Bruffy,
and Badlyvs. Hunter, above quoted; and similar to the short-lived
government established by the Filipino insurgents in the Island of Cebu
during the Spanish-American war, recognized as a de facto government by
the Supreme Court of the United States in the case of McCleod vs. United
States (299 U. S., 416). According to the facts in the last-named case, the
Spanish forces evacuated the Island of Cebu on December 25, 1898,
having first appointed a provisional government, and shortly afterwards,
the Filipinos, formerly in insurrection against Spain, took possession of the
Islands and established a republic, governing the Islands until possession
thereof was surrendered to the United States on February 22, 1898. And
the said Supreme Court held in that case that "such government was of
the class of de facto governments described in I Moore's International Law
Digest, S 20, . . . 'called also by publicists a government de facto, but
which might, perhaps, be more aptly denominated a government of
paramount force . . '." That is to say, that the government of a country in
possession of belligerent forces in insurrection or rebellion against the
parent state, rests upon the same principles as that of a territory occupied
by the hostile army of an enemy at regular war with the legitimate power.
That not only judicial but also legislative acts of de facto governments,
which are not of a political complexion, are and remain valid after
reoccupation of a territory occupied by a belligerent occupant, is confirmed
by the Proclamation issued by General Douglas MacArthur on October 23,
1944, which declares null and void all laws, regulations and processes of
the governments established in the Philippines during the Japanese
occupation, for it would not have been necessary for said proclamation to
abrogate them if they were invalid ab initio.
2. The second question hinges upon the interpretation of the phrase
"processes of any other government" as used in the above-quoted
proclamation of General Douglas MacArthur of October 23, 1944 that is,
whether it was the intention of the Commander in Chief of the American
Forces to annul and void thereby all judgments and judicial proceedings of
the courts established in the Philippines during the Japanese military
occupation.
The phrase "processes of any other government" is broad and may refer
not only to the judicial processes, but also to administrative or legislative,
as well as constitutional, processes of the Republic of the Philippines or
other governmental agencies established in the Islands during the
Japanese occupation. Taking into consideration the fact that, as above
indicated, according to the well-known principles of international law all
judgements and judicial proceedings, which are not of a political
complexion, of the de facto governments during the Japanese military
occupation were good and valid before and remained so after the occupied
territory had come again into the power of the titular sovereign, it should
be presumed that it was not, and could not have been, the intention of
General Douglas MacArthur, in using the phrase "processes of any other
government" in said proclamation, to refer to judicial processes, in violation
of said principles of international law. The only reasonable construction of
the said phrase is that it refers to governmental processes other than
judicial processes of court proceedings, for according to a well-known rule
of statutory construction, set forth in 25 R. C. L., p. 1028, "a statute ought
The governments by the Philippine Executive Commission and the Republic

of the Philippines during the Japanese military occupation being de
facto governments, it necessarily follows that the judicial acts and
proceedings of the courts of justice of those governments, which are not of
a political complexion, were good and valid, and, by virtue of the wellknown principle of postliminy (postliminium) in international law, remained
good and valid after the liberation or reoccupation of the Philippines by the
American and Filipino forces under the leadership of General Douglas
MacArthur. According to that well-known principle in international law, the
fact that a territory which has been occupied by an enemy comes again
into the power of its legitimate government of sovereignty, "does not,
except in a very few cases, wipe out the effects of acts done by an invader,
which for one reason or another it is within his competence to do. Thus
judicial acts done under his control, when they are not of a political
complexion, administrative acts so done, to the extent that they take effect
during the continuance of his control, and the various acts done during the
133
never to be construed to violate the law of nations if any other possible

construction remains."
insure public order and safety during military occupation, would be

sufficient to paralyze the social life of the country or occupied territory, for
it would have to be expected that litigants would not willingly submit their
litigation to courts whose judgements or decisions may afterwards be
annulled, and criminals would not be deterred from committing crimes or
offenses in the expectancy that they may escaped the penalty if judgments
rendered against them may be afterwards set aside.
It is true that the commanding general of a belligerent army of occupation,

as an agent of his government, may not unlawfully suspend existing laws
and promulgate new ones in the occupied territory, if and when the
exigencies of the military occupation demand such action. But even
assuming that, under the law of nations, the legislative power of a
commander in chief of military forces who liberates or reoccupies his own
territory which has been occupied by an enemy, during the military and
before the restoration of the civil regime, is as broad as that of the
commander in chief of the military forces of invasion and occupation
(although the exigencies of military reoccupation are evidently less than
those of occupation), it is to be presumed that General Douglas MacArthur,
who was acting as an agent or a representative of the Government and the
President of the United States, constitutional commander in chief of the
United States Army, did not intend to act against the principles of the law
of nations asserted by the Supreme Court of the United States from the
early period of its existence, applied by the Presidents of the United States,
and later embodied in the Hague Conventions of 1907, as above indicated.
It is not to be presumed that General Douglas MacArthur, who enjoined in
the same proclamation of October 23, 1944, "upon the loyal citizens of the
Philippines full respect and obedience to the Constitution of the
Commonwealth of the Philippines," should not only reverse the
international policy and practice of his own government, but also disregard
in the same breath the provisions of section 3, Article II, of our
Constitution, which provides that "The Philippines renounces war as an
instrument of national policy, and adopts the generally accepted principles
of international law as part of the law of the Nation."
That the proclamation has not invalidated all the judgements and
proceedings of the courts of justice during the Japanese regime, is
impliedly confirmed by Executive Order No. 37, which has the force of law,
issued by the President of the Philippines on March 10, 1945, by virtue of
the emergency legislative power vested in him by the Constitution and the
laws of the Commonwealth of the Philippines. Said Executive order
abolished the Court of Appeals, and provided "that all case which have
heretofore been duly appealed to the Court of Appeals shall be transmitted
to the Supreme Court final decision." This provision impliedly recognizes
that the judgments and proceedings of the courts during the Japanese
military occupation have not been invalidated by the proclamation of
General MacArthur of October 23, because the said Order does not say or
refer to cases which have been duly appealed to said court prior to the
Japanese occupation, but to cases which had therefore, that is, up to March
10, 1945, been duly appealed to the Court of Appeals; and it is to be
presumed that almost all, if not all, appealed cases pending in the Court of
Appeals prior to the Japanese military occupation of Manila on January 2,
1942, had been disposed of by the latter before the restoration of the
Commonwealth Government in 1945; while almost all, if not all, appealed
cases pending on March 10, 1945, in the Court of Appeals were from
judgments rendered by the Court of First Instance during the Japanese
regime.
Moreover, from a contrary construction great inconvenience and public

hardship would result, and great public interests would be endangered and
sacrificed, for disputes or suits already adjudged would have to be again
settled accrued or vested rights nullified, sentences passed on criminals
set aside, and criminals might easily become immune for evidence against
them may have already disappeared or be no longer available, especially
now that almost all court records in the Philippines have been destroyed by
fire as a consequence of the war. And it is another well-established rule of
statutory construction that where great inconvenience will result from a
particular construction, or great public interests would be endangered or
sacrificed, or great mischief done, such construction is to be avoided, or
the court ought to presume that such construction was not intended by the
makers of the law, unless required by clear and unequivocal words. (25 R.
C. L., pp. 1025, 1027.)
The respondent judge quotes a portion of Wheaton's International Law

which say: "Moreover when it is said that an occupier's acts are valid and
under international law should not be abrogated by the subsequent
conqueror, it must be remembered that no crucial instances exist to show
that if his acts should be reversed, any international wrong would be
committed. What does happen is that most matters are allowed to stand
by the restored government, but the matter can hardly be put further than
this." (Wheaton, International Law, War, 7th English edition of 1944, p.
245.) And from this quotion the respondent judge "draws the conclusion
that whether the acts of the occupant should be considered valid or not, is
a question that is up to the restored government to decide; that there is no
rule of international law that denies to the restored government to decide;
that there is no rule of international law that denies to the restored
government the right of exercise its discretion on the matter, imposing
upon it in its stead the obligation of recognizing and enforcing the acts of
the overthrown government."
The mere conception or thought of possibility that the titular sovereign or

his representatives who reoccupies a territory occupied by an enemy, may
set aside or annul all the judicial acts or proceedings of the tribunals which
the belligerent occupant had the right and duty to establish in order to
134
There is doubt that the subsequent conqueror has the right to abrogate
most of the acts of the occupier, such as the laws, regulations and
processes other than judicial of the government established by the
belligerent occupant. But in view of the fact that the proclamation uses the
words "processes of any other government" and not "judicial processes"
prisely, it is not necessary to determine whether or not General Douglas
MacArthur had power to annul and set aside all judgments and proceedings
of the courts during the Japanese occupation. The question to be
determined is whether or not it was his intention, as representative of the
President of the United States, to avoid or nullify them. If the proclamation
had, expressly or by necessary implication, declared null and void the
judicial processes of any other government, it would be necessary for this
court to decide in the present case whether or not General Douglas
MacArthur had authority to declare them null and void. But the
proclamation did not so provide, undoubtedly because the author thereof
was fully aware of the limitations of his powers as Commander in Chief of
Military Forces of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law,
as they result from the usages established between civilized nations, the
laws of humanity and the requirements of the public of conscience,
constitute or from the law of nations. (Preamble of the Hague Conventions;
Westlake, International Law, 2d ed., Part II, p. 61.) Article 43, section III, of
the Hague Regulations or Conventions which we have already quoted in
discussing the first question, imposes upon the occupant the obligation to
establish courts; and Article 23 (h), section II, of the same Conventions,
which prohibits the belligerent occupant "to declare . . . suspended . . . in a
Court of Law the rights and action of the nationals of the hostile party,"
forbids him to make any declaration preventing the inhabitants from using
their courts to assert or enforce their civil rights. (Decision of the Court of
Appeals of England in the case of Porter vs. Fruedenburg, L.R. [1915], 1
K.B., 857.) If a belligerent occupant is required to establish courts of justice
in the territory occupied, and forbidden to prevent the nationals thereof
from asserting or enforcing therein their civil rights, by necessary
implication, the military commander of the forces of liberation or the
restored government is restrained from nullifying or setting aside the
judgments rendered by said courts in their litigation during the period of
occupation. Otherwise, the purpose of these precepts of the Hague
Conventions would be thwarted, for to declare them null and void would be
tantamount to suspending in said courts the right and action of the
nationals of the territory during the military occupation thereof by the
enemy. It goes without saying that a law that enjoins a person to do
something will not at the same time empower another to undo the same.
Although the question whether the President or commanding officer of the
United States Army has violated restraints imposed by the constitution and
laws of his country is obviously of a domestic nature, yet, in construing and
applying limitations imposed on the executive authority, the Supreme
Court of the United States, in the case of Ochoa, vs. Hernandez (230 U.S.,
139), has declared that they "arise from general rules of international law
and from fundamental principles known wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued
by the officer in command of the forces of the United States in South
Carolina after the end of the Civil War, wholly annulling a decree rendered
by a court of chancery in that state in a case within its jurisdiction, was
declared void, and not warranted by the acts approved respectively March
2, 1867 (14 Stat., 428), and July 19 of the same year (15 id., 14), which
defined the powers and duties of military officers in command of the
several states then lately in rebellion. In the course of its decision the court
said; "We have looked carefully through the acts of March 2, 1867 and July
19, 1867. They give very large governmental powers to the military
commanders designated, within the States committed respectively to their
jurisdiction; but we have found nothing to warrant the order here in
question. . . . The clearest language would be necessary to satisfy us that
Congress intended that the power given by these acts should be so
exercised. . . . It was an arbitrary stretch of authority, needful to no good
end that can be imagined. Whether Congress could have conferred the
135
power to do such an act is a question we are not called upon to consider. It

is an unbending rule of law that the exercise of military power, where the
rights of the citizen are concerned, shall never be pushed beyond what the
exigency requires. (Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4
Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p.
934.) Viewing the subject before us from the standpoint indicated, we hold
that the order was void."
inasmuch as belligerent occupation is essentially provisional, and the

government established by the occupant of transient character.
Following these practice and precepts of the law of nations, Commander in
Chief of the Japanese Forces proclaimed on January 3, 1942, when Manila
was occupied, the military administration under martial law over the
territory occupied by the army, and ordered that "all the laws now in force
in the Commonwealth, as well as executive and judicial institutions, shall
continue to be affective for the time being as in the past," and "all public
officials shall remain in their present post and carry on faithfully their
duties as before." When the Philippine Executive Commission was
organized by Order No. 1 of the Japanese Commander in Chief, on January
23, 1942, the Chairman of the Executive Commission, by Executive Orders
Nos. 1 and 4 of January 30 and February 5, respectively, continued the
Supreme Court, Court of Appeals, Court of First Instance, and justices of
the peace of courts, with the same jurisdiction in conformity with the
instructions given by the Commander in Chief of the Imperial Japanese
Army in Order No. 3 of February 20, 1942. And on October 14, 1943 when
the so-called Republic of the Philippines was inaugurated, the same courts
were continued with no substantial change in organization and jurisdiction
thereof.
It is, therefore, evident that the proclamation of General MacArthur of

October 23, 1944, which declared that "all laws, regulations and processes
of any other government in the Philippines than that of the said
Commonwealth are null and void without legal effect in areas of the
Philippines free of enemy occupation and control," has not invalidated the
judicial acts and proceedings, which are not a political complexion, of the
courts of justice in the Philippines that were continued by the Philippine
Executive Commission and the Republic of the Philippines during the
Japanese military occupation, and that said judicial acts and proceedings
were good and valid before and now good and valid after the reoccupation
of liberation of the Philippines by the American and Filipino forces.
3. The third and last question is whether or not the courts of the
Commonwealth, which are the same as those existing prior to, and
continued during, the Japanese military occupation by the Philippine
Executive Commission and by the so-called Republic of the Philippines,
have jurisdiction to continue now the proceedings in actions pending in
said courts at the time the Philippine Islands were reoccupied or liberated
by the American and Filipino forces, and the Commonwealth Government
was restored.
If the proceedings pending in the different courts of the Islands prior to the
Japanese military occupation had been continued during the Japanese
military administration, the Philippine Executive Commission, and the socalled Republic of the Philippines, it stands to reason that the same courts,
which had become reestablished and conceived of as having in continued
existence upon the reoccupation and liberation of the Philippines by virtue
of the principle of postliminy (Hall, International Law, 7th ed., p. 516), may
continue the proceedings in cases then pending in said courts, without
necessity of enacting a law conferring jurisdiction upon them to continue
said proceedings. As Taylor graphically points out in speaking of said
principles "a state or other governmental entity, upon the removal of a
foreign military force, resumes its old place with its right and duties
substantially unimpaired. . . . Such political resurrection is the result of a
law analogous to that which enables elastic bodies to regain their original
shape upon removal of the external force, and subject to the same
exception in case of absolute crushing of the whole fibre and content."
(Taylor, International Public Law, p. 615.)
Although in theory the authority the authority of the local civil and judicial
administration is suspended as a matter of course as soon as military
occupation takes place, in practice the invader does not usually take the
administration of justice into his own hands, but continues the ordinary
courts or tribunals to administer the laws of the country which he is
enjoined, unless absolutely prevented, to respect. As stated in the abovequoted Executive Order of President McKinley to the Secretary of War on
May 19, 1898, "in practice, they (the municipal laws) are not usually
abrogated but are allowed to remain in force and to be administered by the
ordinary tribunals substantially as they were before the occupation. This
enlightened practice is, so far as possible, to be adhered to on the present
occasion." And Taylor in this connection says: "From a theoretical point of
view it may be said that the conqueror is armed with the right to substitute
his arbitrary will for all preexisting forms of government, legislative,
executive and judicial. From the stand-point of actual practice such
arbitrary will is restrained by the provision of the law of nations which
compels the conqueror to continue local laws and institution so far as
military necessity will permit." (Taylor, International Public Law, p.596.)
Undoubtedly, this practice has been adopted in order that the ordinary
pursuits and business of society may not be unnecessarily deranged,
The argument advanced by the respondent judge in his resolution in

support in his conclusion that the Court of First Instance of Manila presided
over by him "has no authority to take cognizance of, and continue said
proceedings (of this case) to final judgment until and unless the
Government of the Commonwealth of the Philippines . . . shall have
provided for the transfer of the jurisdiction of the courts of the now defunct
Republic of the Philippines, and the cases commenced and the left pending
therein," is "that said courts were a government alien to the
Commonwealth Government. The laws they enforced were, true enough,
136
laws of the Commonwealth prior to Japanese occupation, but they had

become the laws and the courts had become the institutions of Japan
by adoption (U.S. vs.Reiter. 27 F. Cases, No. 16146), as they became later
on the laws and institutions of the Philippine Executive Commission and the
Republic of the Philippines."
until a change take place, and when changed it continues in such changed
condition until the next change, and so forever. Conquest or colonization is
impotent to bring law to an end; in spite of change of constitution, the law
continues unchanged until the new sovereign by legislative acts creates a
change."
The court in the said case of U.S. vs. Reiter did not and could not say that
the laws and institutions of the country occupied if continued by the
conqueror or occupant, become the laws and the courts, by adoption, of
the sovereign nation that is militarily occupying the territory. Because, as
already shown, belligerent or military occupation is essentially provisional
and does not serve to transfer the sovereignty over the occupied territory
to the occupant. What the court said was that, if such laws and institutions
are continued in use by the occupant, they become his and derive their
force from him, in the sense that he may continue or set them aside. The
laws and institution or courts so continued remain the laws and institutions
or courts of the occupied territory. The laws and the courts of the
Philippines, therefore, did not become, by being continued as required by
the law of nations, laws and courts of Japan. The provision of Article 45,
section III, of the Hague Conventions of 1907 which prohibits any
compulsion of the population of occupied territory to swear allegiance to
the hostile power, "extends to prohibit everything which would assert or
imply a change made by the invader in the legitimate sovereignty. This
duty is neither to innovate in the political life of the occupied districts, nor
needlessly to break the continuity of their legal life. Hence, so far as the
courts of justice are allowed to continue administering the territorial laws,
they must be allowed to give their sentences in the name of the legitimate
sovereign " (Westlake, Int. Law, Part II, second ed., p. 102). According to
Wheaton, however, the victor need not allow the use of that of the
legitimate government. When in 1870, the Germans in France attempted to
violate that rule by ordering, after the fall of the Emperor Napoleon, the
courts of Nancy to administer justice in the name of the "High German
Powers occupying Alsace and Lorraine," upon the ground that the exercise
of their powers in the name of French people and government was at least
an implied recognition of the Republic, the courts refused to obey and
suspended their sitting. Germany originally ordered the use of the name of
"High German Powers occupying Alsace and Lorraine," but later offered to
allow use of the name of the Emperor or a compromise. (Wheaton,
International Law, War, 7th English ed. 1944, p. 244.)
As courts are creatures of statutes and their existence defends upon that
of the laws which create and confer upon them their jurisdiction, it is
evident that such laws, not being a political nature, are not abrogated by a
change of sovereignty, and continue in force "ex proprio vigore" unless and
until repealed by legislative acts. A proclamation that said laws and courts
are expressly continued is not necessary in order that they may continue in
force. Such proclamation, if made, is but a declaration of the intention of
respecting and not repealing those laws. Therefore, even assuming that
Japan had legally acquired sovereignty over these Islands, which she had
afterwards transferred to the so-called Republic of the Philippines, and that
the laws and the courts of these Islands had become the courts of Japan,
as the said courts of the laws creating and conferring jurisdiction upon
them have continued in force until now, it necessarily follows that the
same courts may continue exercising the same jurisdiction over cases
pending therein before the restoration of the Commonwealth Government,
unless and until they are abolished or the laws creating and conferring
jurisdiction upon them are repealed by the said government. As a
consequence, enabling laws or acts providing that proceedings pending in
one court be continued by or transferred to another court, are not required
by the mere change of government or sovereignty. They are necessary only
in case the former courts are abolished or their jurisdiction so change that
they can no longer continue taking cognizance of the cases and
proceedings commenced therein, in order that the new courts or the courts
having jurisdiction over said cases may continue the proceedings. When
the Spanish sovereignty in the Philippine Islands ceased and the Islands
came into the possession of the United States, the "Audiencia" or Supreme
Court was continued and did not cease to exist, and proceeded to take
cognizance of the actions pending therein upon the cessation of the
Spanish sovereignty until the said "Audiencia" or Supreme Court was
abolished, and the Supreme Court created in Chapter II of Act No. 136 was
substituted in lieu thereof. And the Courts of First Instance of the Islands
during the Spanish regime continued taking cognizance of cases pending
therein upon the change of sovereignty, until section 65 of the same Act
No. 136 abolished them and created in its Chapter IV the present Courts of
First Instance in substitution of the former. Similarly, no enabling acts were
enacted during the Japanese occupation, but a mere proclamation or order
that the courts in the Island were continued.
Furthermore, it is a legal maxim, that excepting that of a political nature,

"Law once established continues until changed by the some competent
legislative power. It is not change merely by change of sovereignty."
(Joseph H. Beale, Cases on Conflict of Laws, III, Summary Section 9, citing
Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his
Treatise on the Conflict on Laws (Cambridge, 1916, Section 131): "There
can no break or interregnum in law. From the time the law comes into
existence with the first-felt corporateness of a primitive people it must last
until the final disappearance of human society. Once created, it persists
On the other hand, during the American regime, when section 78 of Act No.
136 was enacted abolishing the civil jurisdiction of the provost courts
created by the military government of occupation in the Philippines during
the Spanish-American War of 1898, the same section 78 provided for the
transfer of all civil actions then pending in the provost courts to the proper
137
tribunals, that is, to the justices of the peace courts, Court of First Instance,
or Supreme Court having jurisdiction over them according to law. And later
on, when the criminal jurisdiction of provost courts in the City of Manila
was abolished by section 3 of Act No. 186, the same section provided that
criminal cases pending therein within the jurisdiction of the municipal court
created by Act No. 183 were transferred to the latter.
In view of all the foregoing it is adjudged and decreed that a writ

of mandamus issue, directed to the respondent judge of the Court of First
Instance of Manila, ordering him to take cognizance of and continue to final
judgment the proceedings in civil case No. 3012 of said court. No
pronouncement as to costs. So ordered.
Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.
That the present courts as the same courts which had been functioning
during the Japanese regime and, therefore, can continue the proceedings
in cases pending therein prior to the restoration of the Commonwealth of
the Philippines, is confirmed by Executive Order No. 37 which we have
already quoted in support of our conclusion in connection with the second
question. Said Executive Order provides"(1) that the Court of Appeals
created and established under Commonwealth Act No. 3 as amended, be
abolished, as it is hereby abolished," and "(2) that all cases which have
heretofore been duly appealed to the Court of Appeals shall be transmitted
to the Supreme Court for final decision. . . ." In so providing, the said Order
considers that the Court of Appeals abolished was the same that existed
prior to, and continued after, the restoration of the Commonwealth
Government; for, as we have stated in discussing the previous question,
almost all, if not all, of the cases pending therein, or which had theretofore
(that is, up to March 10, 1945) been duly appealed to said court, must
have been cases coming from the Courts of First Instance during the socalled Republic of the Philippines. If the Court of Appeals abolished by the
said Executive Order was not the same one which had been functioning
during the Republic, but that which had existed up to the time of the
Japanese occupation, it would have provided that all the cases which had,
prior to and up to that occupation on January 2, 1942, been dully appealed
to the said Court of Appeals shall be transmitted to the Supreme Court for
final decision.
*****Lawyers League v. Aquino

SUPREME COURT
Manila
EN BANC
G.R. No. 146710-15
March 2, 2001
JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON
GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION,
GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA,
DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.
----------------------------------------
It is, therefore, obvious that the present courts have jurisdiction to

continue, to final judgment, the proceedings in cases, not of political
complexion, pending therein at the time of the restoration of the
Commonwealth Government.
G.R. No. 146738
March 2, 2001
JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.
Having arrived at the above conclusions, it follows that the Court of First
Instance of Manila has jurisdiction to continue to final judgment the
proceedings in civil case No. 3012, which involves civil rights of the parties
under the laws of the Commonwealth Government, pending in said court at
the time of the restoration of the said Government; and that the
respondent judge of the court, having refused to act and continue him does
a duty resulting from his office as presiding judge of that
court, mandamus is the speedy and adequate remedy in the ordinary
course of law, especially taking into consideration the fact that the
question of jurisdiction herein involved does affect not only this particular
case, but many other cases now pending in all the courts of these Islands.
PUNO, J.:
On the line in the cases at bar is the office of the President. Petitioner
Joseph Ejercito Estrada alleges that he is the President on leave while
respondent Gloria Macapagal-Arroyo claims she is the President. The
warring personalities are important enough but more transcendental are
the constitutional issues embedded on the parties' dispute. While the
significant issues are many, the jugular issue involves the relationship
between the ruler and the ruled in a democracy, Philippine style.
138
First, we take a view of the panorama of events that precipitated the crisis
in the office of the President.
The heat was on. On November 1, four (4) senior economic advisers,
members of the Council of Senior Economic Advisers, resigned. They were
Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former
Senator Vicente Paterno and Washington Sycip. 8 On November 2, Secretary
Mar Roxas II also resigned from the Department of Trade and Industry. 9 On
November 3, Senate President Franklin Drilon, and House Speaker Manuel
Villar, together with some 47 representatives defected from the ruling
coalition, Lapian ng Masang Pilipino.10
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was
elected President while respondent Gloria Macapagal-Arroyo was elected
Vice-President. Some ten (10) million Filipinos voted for the petitioner
believing he would rescue them from life's adversity. Both petitioner and
the respondent were to serve a six-year term commencing on June 30,
1998.
The month of November ended with a big bang. In a tumultuous session on

November 13, House Speaker Villar transmitted the Articles of
Impeachment11 signed by 115 representatives, or more than 1/3 of all the
members of the House of Representatives to the Senate. This caused
political convulsions in both houses of Congress. Senator Drilon was
replaced by Senator Pimentel as Senate President. Speaker Villar was
unseated by Representative Fuentebella. 12 On November 20, the Senate
formally opened the impeachment trial of the petitioner. Twenty-one (21)
senators took their oath as judges with Supreme Court Chief Justice Hilario
G. Davide, Jr., presiding.13
From the beginning of his term, however, petitioner was plagued by a

plethora of problems that slowly but surely eroded his popularity. His sharp
descent from power started on October 4, 2000. Ilocos Sur Governor, Luis
"Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos
from jueteng lords.1
The expos immediately ignited reactions of rage. The next day, October 5,
2000, Senator Teofisto Guingona, Jr., then the Senate Minority Leader, took
the floor and delivered a fiery privilege speech entitled "I Accuse." He
accused the petitioner of receiving some P220 million in jueteng money
from Governor Singson from November 1998 to August 2000. He also
charged that the petitioner took from Governor Singson P70 million on
excise tax on cigarettes intended for Ilocos Sur. The privilege speech was
referred by then Senate President Franklin Drilon, to the Blue Ribbon
Committee (then headed by Senator Aquilino Pimentel) and the Committee
on Justice (then headed by Senator Renato Cayetano) for joint
investigation.2
The political temperature rose despite the cold December. On December 7,

the impeachment trial started.14 The battle royale was fought by some of
the marquee names in the legal profession. Standing as prosecutors were
then House Minority Floor Leader Feliciano Belmonte and Representatives
Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar
Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez
and Antonio Nachura. They were assisted by a battery of private
prosecutors led by now Secretary of Justice Hernando Perez and now
Solicitor General Simeon Marcelo. Serving as defense counsel were former
Chief Justice Andres Narvasa, former Solicitor General and Secretary of
Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flaminiano,
former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and
his brother, Atty. Raymund Fortun. The day to day trial was covered by live
TV and during its course enjoyed the highest viewing rating. Its high and
low points were the constant conversational piece of the chattering
classes. The dramatic point of the December hearings was the testimony of
Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified
that she was one foot away from petitioner Estrada when he affixed the
signature "Jose Velarde" on documents involving a P500 million investment
agreement with their bank on February 4, 2000.15
The House of Representatives did no less. The House Committee on Public

Order and Security, then headed by Representative Roilo Golez, decided to
investigate the expos of Governor Singson. On the other hand,
Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11,
Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the
Presbyteral Council of the Archdiocese of Manila, asking petitioner to step
down from the presidency as he had lost the moral authority to
govern.3 Two days later or on October 13, the Catholic Bishops Conference
of the Philippines joined the cry for the resignation of the petitioner. 4 Four
days later, or on October 17, former President Corazon C. Aquino also
demanded that the petitioner take the "supreme self-sacrifice" of
resignation.5 Former President Fidel Ramos also joined the chorus. Early on,
or on October 12, respondent Arroyo resigned as Secretary of the
Department of Social Welfare and Services 6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and
refused to resign.
After the testimony of Ocampo, the impeachment trial was adjourned in

the spirit of Christmas. When it resumed on January 2, 2001, more
bombshells were exploded by the prosecution. On January 11, Atty.
Edgardo Espiritu who served as petitioner's Secretary of Finance took the
witness stand. He alleged that the petitioner jointly owned BW Resources
Corporation with Mr. Dante Tan who was facing charges of insider
trading.16 Then came the fateful day of January 16, when by a vote of 111017 the senator-judges ruled against the opening of the second envelope
139
which allegedly contained evidence showing that petitioner held P3.3

billion in a secret bank account under the name "Jose Velarde." The public
and private prosecutors walked out in protest of the ruling. In disgust,
Senator Pimentel resigned as Senate President. 18 The ruling made at 10:00
p.m. was met by a spontaneous outburst of anger that hit the streets of the
metropolis. By midnight, thousands had assembled at the EDSA Shrine and
speeches full of sulphur were delivered against the petitioner and the
eleven (11) senators.
January 20 turned to be the day of surrender. At 12:20 a.m., the first round
of negotiations for the peaceful and orderly transfer of power started at
Malacaang'' Mabini Hall, Office of the Executive Secretary. Secretary
Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty.
Macel Fernandez, head of the Presidential Management Staff, negotiated
for the petitioner. Respondent Arroyo was represented by now Executive
Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and
now Secretary of Justice Hernando Perez. 27 Outside the palace, there was a
brief encounter at Mendiola between pro and anti-Estrada protesters which
resulted in stone-throwing and caused minor injuries. The negotiations
consumed all morning until the news broke out that Chief Justice Davide
would administer the oath to respondent Arroyo at high noon at the EDSA
Shrine.
On January 17, the public prosecutors submitted a letter to Speaker

Fuentebella tendering their collective resignation. They also filed their
Manifestation of Withdrawal of Appearance with the impeachment
tribunal.19Senator Raul Roco quickly moved for the indefinite postponement
of the impeachment proceedings until the House of Representatives shall
have resolved the issue of resignation of the public prosecutors. Chief
Justice Davide granted the motion.20
At about 12:00 noon, Chief Justice Davide administered the oath to

respondent Arroyo as President of the Philippines. 28 At 2:30 p.m., petitioner
and his family hurriedly left Malacaang Palace.29 He issued the following
press statement:30
January 18 saw the high velocity intensification of the call for petitioner's
resignation. A 10-kilometer line of people holding lighted candles formed a
human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati
City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes
in Metro Manila to show their concordance. Speakers in the continuing
rallies at the EDSA Shrine, all masters of the physics of persuasion,
attracted more and more people.21
"20 January 2001

STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
On January 19, the fall from power of the petitioner appeared inevitable. At
1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara
that General Angelo Reyes, Chief of Staff of the Armed Forces of the
Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of
a snap election for President where he would not be a candidate. It did not
diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense
Orlando Mercado and General Reyes, together with the chiefs of all the
armed services went to the EDSA Shrine. 22 In the presence of former
Presidents Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on behalf of Your Armed
Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government." 23 A
little later, PNP Chief, Director General Panfilo Lacson and the major service
commanders gave a similar stunning announcement. 24 Some Cabinet
secretaries, undersecretaries, assistant secretaries, and bureau chiefs
quickly resigned from their posts. 25 Rallies for the resignation of the
petitioner exploded in various parts of the country. To stem the tide of rage,
petitioner announced he was ordering his lawyers to agree to the opening
of the highly controversial second envelope. 26There was no turning back
the tide. The tide had become a tsunami.
At twelve o'clock noon today, Vice President Gloria MacapagalArroyo took her oath as President of the Republic of the Philippines.
While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality
of her proclamation as President, I do not wish to be a factor that
will prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of
the presidency of this country, for the sake of peace and in order to
begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service
to our people. I will not shirk from any future challenges that may
come ahead in the same service of our country.
I call on all my supporters and followers to join me in to promotion
of a constructive national spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
140
(Sgd.) JOSEPH EJERCITO ESTRADA"
Respondent Arroyo appointed members of her Cabinet as well as

ambassadors and special envoys.34 Recognition of respondent Arroyo's
government by foreign governments swiftly followed. On January 23, in a
reception or vin d' honneur at Malacaang, led by the Dean of the
Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred
foreign diplomats recognized the government of respondent Arroyo. 35 US
President George W. Bush gave the respondent a telephone call from the
White House conveying US recognition of her government. 36
It also appears that on the same day, January 20, 2001, he signed the
following letter:31
"Sir:
By virtue of the provisions of Section 11, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By operation
of law and the Constitution, the Vice-President shall be the Acting
President.
On January 24, Representative Feliciano Belmonte was elected new

Speaker of the House of Representatives. 37The House then passed
Resolution No. 175 "expressing the full support of the House of
Representatives to the administration of Her Excellency, Gloria MacapagalArroyo, President of the Philippines."38 It also approved Resolution No. 176
"expressing the support of the House of Representatives to the assumption
into office by Vice President Gloria Macapagal-Arroyo as President of the
Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the
nation's goals under the Constitution."39
(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on
January 20.23 Another copy was transmitted to Senate President Pimentel
on the same day although it was received only at 9:00 p.m. 33
On January 26, the respondent signed into law the Solid Waste
Management Act.40 A few days later, she also signed into law the Political
Advertising ban and Fair Election Practices Act.41
On January 22, the Monday after taking her oath, respondent Arroyo
immediately discharged the powers the duties of the Presidency. On the
same day, this Court issued the following Resolution in Administrative
Matter No. 01-1-05-SC, to wit:
On February 6, respondent Arroyo nominated Senator Teofisto Guingona,

Jr., as her Vice President.42 The next day, February 7, the Senate adopted
Resolution No. 82 confirming the nomination of Senator Guingona,
Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John
Osmena voted "yes" with reservations, citing as reason therefor the
pending challenge on the legitimacy of respondent Arroyo's presidency
before the Supreme Court. Senators Teresa Aquino-Oreta and Robert
Barbers were absent.44 The House of Representatives also approved
Senator Guingona's nomination in Resolution No. 178. 45 Senator Guingona,
Jr. took his oath as Vice President two (2) days later. 46
"A.M. No. 01-1-05-SC In re: Request of Vice President Gloria

Macapagal-Arroyo to Take her Oath of Office as President of the
Republic of the Philippines before the Chief Justice Acting on the
urgent request of Vice President Gloria Macapagal-Arroyo to be
sworn in as President of the Republic of the Philippines, addressed
to the Chief Justice and confirmed by a letter to the Court, dated
January 20, 2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the authority
given by the twelve (12) members of the Court then present to the
Chief Justice on January 20, 2001 to administer the oath of office of
Vice President Gloria Macapagal-Arroyo as President of the
Philippines, at noon of January 20, 2001.1wphi1.nt
On February 7, the Senate passed Resolution No. 83 declaring that the

impeachment court is functus officio and has been terminated.47 Senator
Miriam Defensor-Santiago stated "for the record" that she voted against
the closure of the impeachment court on the grounds that the Senate had
failed to decide on the impeachment case and that the resolution left open
the question of whether Estrada was still qualified to run for another
elective post.48
This resolution is without prejudice to the disposition of any

justiciable case that may be filed by a proper party."
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public

acceptance rating jacked up from 16% on January 20, 2001 to 38% on
January 26, 2001.49 In another survey conducted by the ABS-CBN/SWS from
February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The
141
survey also revealed that President Arroyo is accepted by 60% in Metro

Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and
55% in Mindanao. Her trust rating increased to 52%. Her presidency is
accepted by majorities in all social classes: 58% in the ABC or middle-toupper classes, 64% in the D or mass class, and 54% among the E's or very
poor class.50
2001." On February 13, the Court ordered the consolidation of GR Nos.

146710-15 and GR No. 146738 and the filing of the respondents'
comments "on or before 8:00 a.m. of February 15."
On February 15, the consolidated cases were orally argued in a four-hour
hearing. Before the hearing, Chief Justice Davide, Jr. 51 and Associate Justice
Artemio Panganiban52 recused themselves on motion of petitioner's
counsel, former Senator Rene A. Saguisag. They debunked the charge of
counsel Saguisag that they have "compromised themselves by indicating
that they have thrown their weight on one side" but nonetheless inhibited
themselves. Thereafter, the parties were given the short period of five (5)
days to file their memoranda and two (2) days to submit their
simultaneous replies.
After his fall from the pedestal of power, the petitioner's legal problems
appeared in clusters. Several cases previously filed against him in the
Office of the Ombudsman were set in motion. These are: (1) OMB Case No.
0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and
graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers
Against Crime and Corruption on November 17, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct,
violation of the Code of Conduct for Government Employees, etc; (3) OMB
Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on
November 24, 2000 for plunder, forfeiture, graft and corruption, bribery,
perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo
Capulong, et al., on November 28, 2000 for malversation of public funds,
illegal use of public funds and property, plunder, etc.; (5) OMB Case No. 000-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery,
plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA
7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.
In a resolution dated February 20, acting on the urgent motion for copies of
resolution and press statement for "Gag Order" on respondent Ombudsman
filed by counsel for petitioner in G.R. No. 146738, the Court resolved:
"(1) to inform the parties that the Court did not issue a resolution
on January 20, 2001 declaring the office of the President vacant
and that neither did the Chief Justice issue a press statement
justifying the alleged resolution;
(2) to order the parties and especially their counsel who are
officers of the Court under pain of being cited for contempt to
refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by
the Court, and
A special panel of investigators was forthwith created by the respondent

Ombudsman to investigate the charges against the petitioner. It is chaired
by Overall Deputy Ombudsman Margarito P. Gervasio with the following as
members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty.
Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued
an Order directing the petitioner to file his counter-affidavit and the
affidavits of his witnesses as well as other supporting documents in answer
to the aforementioned complaints against him.
(3) to issue a 30-day status quo order effective immediately

enjoining the respondent Ombudsman from resolving or deciding
the criminal cases pending investigation in his office against
petitioner, Joseph E. Estrada and subject of the cases at bar, it
appearing from news reports that the respondent Ombudsman
may immediately resolve the cases against petitioner Joseph E.
Estrada seven (7) days after the hearing held on February 15,
2001, which action will make the cases at bar moot and
academic."53
Thus, the stage for the cases at bar was set. On February 5, petitioner filed
with this Court GR No. 146710-15, a petition for prohibition with a prayer
for a writ of preliminary injunction. It sought to enjoin the respondent
Ombudsman from "conducting any further proceedings in Case Nos. OMB
0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal
complaint that may be filed in his office, until after the term of petitioner as
President is over and only if legally warranted." Thru another counsel,
petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed
for judgment "confirming petitioner to be the lawful and incumbent
President of the Republic of the Philippines temporarily unable to discharge
the duties of his office, and declaring respondent to have taken her oath as
and to be holding the Office of the President, only in an acting capacity
pursuant to the provisions of the Constitution." Acting on GR Nos. 14671015, the Court, on the same day, February 6, required the respondents "to
comment thereon within a non-extendible period expiring on 12 February
The parties filed their replies on February 24. On this date, the cases at bar
were deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
142
II
"x x x Prominent on the surface of any case held to involve a

political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department or a
lack of judicially discoverable 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 multifarious pronouncements by various
departments on question. Unless one of these formulations is
inextricable from the case at bar, there should be no dismissal for
non justiciability on the ground of a political question's presence.
The doctrine of which we treat is one of 'political questions', not of
'political cases'."
Assuming that the petitions present a justiciable controversy,

whether petitioner Estrada is a President on leave while respondent
Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a condition
precedent for the criminal prosecution of petitioner Estrada. In the
negative and on the assumption that petitioner is still President,
whether he is immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be enjoined
on the ground of prejudicial publicity.
In the Philippine setting, this Court has been continuously confronted with
cases calling for a firmer delineation of the inner and outer perimeters of a
political question.57 Our leading case is Tanada v. Cuenco,58 where this
Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative
or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a
great degree, the 1987 Constitution has narrowed the reach of the political
question doctrine when it expanded the power of judicial review of this
court not only to settle actual controversies involving rights which are
legally demandable and enforceable but also to determine whether or
not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused
on the "thou shalt not's" of the Constitution directed against the exercise of
its jurisdiction.60With the new provision, however, courts are given a
greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. Clearly, the new provision did
not just grant the Court power of doing nothing. In sync and
symmetry with this intent are other provisions of the 1987 Constitution
trimming the so called political thicket. Prominent of these provisions is
section 18 of Article VII which empowers this Court in limpid language to "x
x x review, in an appropriate proceeding filed by any citizen, the sufficiency
of the factual basis of the proclamation of martial law or the suspension of
the privilege of the writ (of habeas corpus) or the extension thereof x x x."
We shall discuss the issues in seriatim.

I
Whether or not the cases
At bar involve a political question
Private respondents54 raise the threshold issue that the cases at bar pose a
political question, and hence, are beyond the jurisdiction of this Court to
decide. They contend that shorn of its embroideries, the cases at bar assail
the "legitimacy of the Arroyo administration." They stress that respondent
Arroyo ascended the presidency through people power; that she has
already taken her oath as the 14 th President of the Republic; that she has
exercised the powers of the presidency and that she has been recognized
by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.
We reject private respondents' submission. To be sure, courts here and
abroad, have tried to lift the shroud on political question but its exact
latitude still splits the best of legal minds. Developed by the courts in the
20th century, the political question doctrine which rests on the principle of
separation of powers and on prudential considerations, continue to be
refined in the mills of constitutional law. 55 In the United States, the most
authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:
Respondents rely on the case of Lawyers League for a Better

Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino,
et al.61 and related cases62 to support their thesis that since the cases at
143
bar involve thelegitimacy of the government of respondent Arroyo,

ergo, they present a political question. A more cerebral reading of the cited
cases will show that they are inapplicable. In the cited cases, we held that
the government of former President Aquino was the result of
a successful revolution by the sovereign people, albeit a peaceful one.
No less than the Freedom Constitution63 declared that the Aquino
government was installed through a direct exercise of the power of the
Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of
a government sired by a successful revolution by people power is beyond
judicial scrutiny for that government automatically orbits out of the
constitutional loop. In checkered contrast, the government of
respondent Arroyo is not revolutionary in character. The oath that
she took at the EDSA Shrine is the oath under the 1987 Constitution. 64 In
her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers
of the presidency under the authority of the 1987 Constitution.
the freedom of speech or of the press or of the rights of the people to

peaceably assemble and petition the Government for redress of
grievances." The guaranty was carried over in the Philippine Bill, the Act of
Congress of July 1, 1902 and the Jones Law, the Act of Congress of August
29, 1966.66
Thence on, the guaranty was set in stone in our 1935 Constitution,67 and
the 197368 Constitution. These rights are now safely ensconced in section
4, Article III of the 1987 Constitution, viz:
"Sec. 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances."
The indispensability of the people's freedom of speech and of assembly to
democracy is now self-evident. The reasons are well put by Emerson: first,
freedom of expression is essential as a means of assuring individual
fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in
decision-making by all members of society; and fourth, it is a method of
achieving a more adaptable and hence, a more stable community of
maintaining the precarious balance between healthy cleavage and
necessary consensus."69 In this sense, freedom of speech and of
assembly provides a framework in which the "conflict necessary to
the progress of a society can take place without destroying the
society."70In Hague v. Committee for Industrial Organization, 71 this
function of free speech and assembly was echoed in the amicus curiae filed
by the Bill of Rights Committee of the American Bar Association which
emphasized that "the basis of the right of assembly is the substitution of
the expression of opinion and belief by talk rather than force; and this
means talk for all and by all."72 In the relatively recent case of Subayco
v. Sandiganbayan,73 this Court similar stressed that " it should be clear
even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a
democracy, it is the people who count; those who are deaf to their
grievances are ciphers."
In fine, the legal distinction between EDSA People Power I EDSA People
Power II is clear. EDSA I involves the exercise of the people power of
revolution which overthrew the whole government. EDSA II is an
exercise ofpeople power of freedom of speech and freedom of
assembly
to
petition
the
government
for
redress
of
grievances which only affected the office of the President. EDSA I is
extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is
intra constitutional and the resignation of the sitting President that it
caused and the succession of the Vice President as President are subject to
judicial review. EDSA I presented a political question; EDSA II
involves legal questions. A brief discourse on freedom of speech and of
the freedom of assembly to petition the government for redress of
grievance which are the cutting edge of EDSA People Power II is not
inappropriate.
Freedom of speech and the right of assembly are treasured by Filipinos.
Denial of these rights was one of the reasons of our 1898 revolution
against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the
recognition of freedom of the press of the Filipinos and included it as
among "the reforms sine quibus non."65 TheMalolos Constitution, which
is the work of the revolutionary Congress in 1898, provided in its Bill of
Rights that Filipinos shall not be deprived (1) of the right to freely express
his ideas or opinions, orally or in writing, through the use of the press or
other similar means; (2) of the right of association for purposes of human
life and which are not contrary to public means; and (3) of the right to send
petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States
acquired jurisdiction over the Philippines. In the Instruction to the
Second Philippine Commission of April 7, 1900 issued by President
McKinley, it is specifically provided "that no law shall be passed abridging
Needless to state, the cases at bar pose legal and not political questions.
The principal issues for resolution require the proper interpretation of
certain provisions in the 1987 Constitution, notably section 1 of Article
II,74 and section 875 of Article VII, and the allocation of governmental powers
under section 1176 of Article VII. The issues likewise call for a ruling on the
scope of presidential immunity from suit. They also involve the correct
calibration of the right of petitioner against prejudicial publicity. As early as
the 1803 case of Marbury v. Madison,77 the doctrine has been laid down
that "it is emphatically the province and duty of the judicial
department to say what the law is . . ." Thus, respondent's in vocation
of the doctrine of political question is but a foray in the dark.
144
II
Whether
or
Resigned as President
not
the
To appreciate the public pressure that led to the resignation of the

petitioner, it is important to follow the succession of events after the
expos of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged
misgovernance in the Blue Ribbon investigation spiked the hate against
him. The Articles of Impeachment filed in the House of Representatives
which initially was given a near cipher chance of succeeding snowballed. In
express speed, it gained the signatures of 115 representatives or more
than 1/3 of the House of Representatives. Soon, petitioner's powerful
political allies began deserting him. Respondent Arroyo quit as Secretary of
Social Welfare. Senate President Drilon and former Speaker Villar defected
with 47 representatives in tow. Then, his respected senior economic
advisers resigned together with his Secretary of Trade and Industry.
petitioner
We now slide to the second issue. None of the parties considered this issue
as posing a political question. Indeed, it involves a legal question whose
factual ingredient is determinable from the records of the case and by
resort to judicial notice. Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he submits that the office of
the President was not vacant when respondent Arroyo took her oath as
President.
The issue brings under the microscope the meaning of section 8, Article VII
of the Constitution which provides:
As the political isolation of the petitioner worsened, the people's call for his
resignation intensified. The call reached a new crescendo when the eleven
(11) members of the impeachment tribunal refused to open the second
envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for
redress of their grievance. Their number grew exponentially. Rallies and
demonstration quickly spread to the countryside like a brush fire.
"Sec. 8. In case of death, permanent disability, removal from office

or resignation of the President, the Vice President shall become the
President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then
act as President until the President or Vice President shall have
been elected and qualified.
As events approached January 20, we can have an authoritative window on

the state of mind of the petitioner. The window is provided in the "Final
Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara
serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals
that in the morning of January 19, petitioner's loyal advisers were worried
about the swelling of the crowd at EDSA, hence, they decided to create an
ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m.,
petitioner pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes)
(Ed, this is serious. Angelo has defected.)" 80 An hour later or at 2:30 p.m.,
the petitioner decided to call for a snap presidential election and stressed
he would not be a candidate. The proposal for a snap election for
president in May where he would not be a candidate is an indicium
that petitioner had intended to give up the presidency even at
that time. At 3:00 p.m., General Reyes joined the sea of EDSA
demonstrators demanding the resignation of the petitioner and
dramatically announced the AFP's withdrawal of support from the
petitioner and their pledge of support to respondent Arroyo. The seismic
shift of support left petitioner weak as a president. According to Secretary
Angara, he asked Senator Pimentel to advise petitioner to consider the
option of "dignified exit or resignation." 81 Petitioner did not
disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the
urgency of making a graceful and dignified exit. He gave the proposal a
sweetener by saying that petitioner would be allowed to go abroad with
enough funds to support him and his family. 83 Significantly, the
petitioner expressed no objection to the suggestion for a graceful
x x x."
The issue then is whether the petitioner resigned as President or should be
considered resigned as of January 20, 2001 when respondent took her oath
as the 14th President of the Public. Resignation is not a high level legal
abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be
coupled by acts of relinquishment.78 The validity of a resignation is not
government by any formal requirement as to form. It can be oral. It can be
written. It can be express. It can be implied. As long as the resignation is
clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any formal
letter of resignation before he evacuated Malacaang Palace in the
afternoon of January 20, 2001 after the oath-taking of respondent Arroyo.
Consequently, whether or not petitioner resigned has to be determined
from his act and omissions before, during and after January 20, 2001 or by
the totality of prior, contemporaneous and posterior facts and
circumstantial evidence bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
145
and dignified exit but said he would never leave the country. 84 At
10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes)
guaranteed that I would have five days to a week in the palace." 85 This is
proof that petitioner had reconciled himself to the reality that he
had to resign. His mind was already concerned with the five-day
grace period he could stay in the palace. It was a matter of time.
Again, this is high grade evidence that the petitioner has

resigned. The intent to resign is clear when he said "x x x Ayoko
na masyado nang masakit." "Ayoko na" are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to the
Angara Diary, the following happened:
The pressure continued piling up. By 11:00 p.m., former President Ramos
called up Secretary Angara and requested, "Ed, magtulungan tayo para
magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly
transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem
was already about a peaceful and orderly transfer of power. The
resignation of the petitioner was implied.
"Opposition's deal
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's
spokesperson) Rene Corona. For this round, I am accompanied by
Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
The first negotiation for a peaceful and orderly transfer of power

immediately started at 12:20 a.m. of January 20, that fateful Saturday.
The negotiation was limited to three (3) points: (1) the transition period
of five days after the petitioner's resignation; (2) the guarantee of the
safety of the petitioner and his family, and (3) the agreement to open the
second envelope to vindicate the name of the petitioner. 87 Again, we note
that the resignation of petitioner was not a disputed point. The
petitioner cannot feign ignorance of this fact. According to Secretary
Angara, at 2:30 a.m., he briefed the petitioner on the three points and the
following entry in the Angara Diary shows the reaction of the
petitioner, viz:
'1. The President shall sign a resignation document within the day,
20 January 2001, that will be effective on Wednesday, 24 January
2001, on which day the Vice President will assume the Presidency
of the Republic of the Philippines.
2. Beginning to day, 20 January 2001, the transition process for the
assumption of the new administration shall commence, and
persons designated by the Vice President to various positions and
offices of the government shall start their orientation activities in
coordination with the incumbent officials concerned.
"x x x
3. The Armed Forces of the Philippines and the Philippine National

Police shall function under the Vice President as national military
and police authority effective immediately.
I explain what happened during the first round of negotiations.

The President immediately stresses that he just wants the fiveday period promised by Reyes, as well as to open the second
envelope to clear his name.
4. The Armed Forced of the Philippines, through its Chief of Staff,

shall guarantee the security of the President and his family as
approved by the national military and police authority (Vice
President).
If the envelope is opened, on Monday, he says, he will leave

by Monday.
5. It is to be noted that the Senate will open the second envelope

in connection with the alleged savings account of the President in
the Equitable PCI Bank in accordance with the rules of the Senate,
pursuant to the request to the Senate President.
The President says. "Pagod na pagod na ako. Ayoko na

masyado nang masakit. Pagod na ako sa red tape,
bureaucracy, intriga. (I am very tired. I don't want any more
of this it's too painful. I'm tired of the red tape, the
bureaucracy, the intrigue.)
Our deal
I just want to clear my name, then I will go." 88
We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective
principals, agree and undertake as follows:
146
'1. A transition will occur and take place on Wednesday, 24 January

2001, at which time President Joseph Ejercito Estrada will turn over
the presidency to Vice President Gloria Macapagal-Arroyo.
by their side and he was ready to fax it to General Reyes and Senator
Pimentel to await the signature of the United Opposition. However, the
signing by the party of the respondent Arroyo was aborted by her oathtaking. The Angara diary narrates the fateful events, viz;90
'2. In return, President Estrada and his families are guaranteed

security and safety of their person and property throughout their
natural lifetimes. Likewise, President Estrada and his families are
guarantee freedom from persecution or retaliation from
government and the private sector throughout their natural
lifetimes.
"xxx
11:00 a.m. Between General Reyes and myself, there is a firm
agreement on the five points to effect a peaceful transition. I can
hear the general clearing all these points with a group he is with. I
hear voices in the background.
This commitment shall be guaranteed by the Armed Forces of the

Philippines (AFP) through the Chief of Staff, as approved by the
national military and police authorities Vice President
(Macapagal).
Agreement.
The agreement starts: 1. The President shall resign today, 20
January 2001, which resignation shall be effective on 24 January
2001, on which day the Vice President will assume the presidency
'3. Both parties shall endeavor to ensure that the Senate sitting as
an impeachment court will authorize the opening of the second
envelope in the impeachment trial as proof that the subject
savings account does not belong to President Estrada.
xxx
'4. During the five-day transition period between 20 January 2001

and 24 January 2001 (the 'Transition Period"), the incoming Cabinet
members shall receive an appropriate briefing from the outgoing
Cabinet officials as part of the orientation program.
The rest of the agreement follows:

2. The transition process for the assumption of the new
administration shall commence on 20 January 2001, wherein
persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.
During the Transition Period, the AFP and the Philippine National
Police (PNP) shall function Vice President (Macapagal) as national
military and police authorities.
'3. The Armed Forces of the Philippines through its Chief of Staff,
shall guarantee the safety and security of the President and his
families throughout their natural lifetimes as approved by the
national military and police authority Vice President.
Both parties hereto agree that the AFP chief of staff and PNP
director general shall obtain all the necessary signatures as affixed
to this agreement and insure faithful implementation and
observance thereof.
'4. The AFP and the Philippine National Police (PNP) shall function
under the Vice President as national military and police authorities.
Vice President Gloria Macapagal-Arroyo shall issue a public

statement in the form and tenor provided for in "Annex A"
heretofore attached to this agreement."89
'5. Both parties request the impeachment court to open the second
envelope in the impeachment trial, the contents of which shall be
offered as proof that the subject savings account does not belong
to the President.
The second round of negotiation cements the reading that the petitioner
has resigned. It will be noted that during this second round of negotiation,
the resignation of the petitioner was again treated as a given fact. The only
unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.
The Vice President shall issue a public statement in the form and
tenor provided for in Annex "B" heretofore attached to this
agreement.
According to Secretary Angara, the draft agreement, which was premised

on the resignation of the petitioner was further refined. It was then, signed
147
11:20 a.m. I am all set to fax General Reyes and Nene Pimentel
our agreement, signed by our side and awaiting the signature of
the United opposition.
The president is having his final meal at the presidential Residence

with the few friends and Cabinet members who have gathered.
And then it happens. General Reyes calls me to say that the

Supreme Court has decided that Gloria Macapagal-Arroyo is
President and will be sworn in at 12 noon.
By this time, demonstrators have already broken down the first line
of defense at Mendiola. Only the PSG is there to protect the Palace,
since the police and military have already withdrawn their support
for the President.
'Bakit hindi naman kayo nakahintay? Paano na ang agreement

(why couldn't you wait? What about the agreement)?' I asked.
1 p.m. The President's personal staff is rushing to pack as many

of the Estrada family's personal possessions as they can.
Reyes answered: 'Wala na, sir (it's over, sir).'
During lunch, Ronnie Puno mentions that the president needs to

release a final statement before leaving Malacaang.
I ask him: Di yung transition period, moot and academic na?'

The statement reads: At twelve o'clock noon today, Vice President
Gloria Macapagal-Arroyo took her oath as President of the Republic
of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to
be a factor that will prevent the restoration of unity and order in
our civil society.
And General Reyes answers: ' Oo nga, I delete na natin, sir (yes,
we're deleting the part).'
Contrary to subsequent reports, I do not react and say that there
was a double cross.
But I immediately instruct Macel to delete the first provision on
resignation since this matter is already moot and academic. Within
moments, Macel erases the first provision and faxes the
documents, which have been signed by myself, Dondon and Macel,
to Nene Pimentel and General Reyes.
It is for this reason that I now leave Malacaang Palace, the seat of
the presidency of this country, for the sake of peace and in order to
begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service
to our people. I will not shirk from any future challenges that may
come ahead in the same service of our country.
I direct Demaree Ravel to rush the original document to General

Reyes for the signatures of the other side, as it is important that
the provisions on security, at least, should be respected.
I call on all my supporters and followers to join me in the promotion

of a constructive national spirit of reconciliation and solidarity.
I then advise the President that the Supreme Court has ruled that
Chief Justice Davide will administer the oath to Gloria at 12 noon.
May the Almighty bless our country and our beloved people.
MABUHAY!"'
The President is too stunned for words:
It was curtain time for the petitioner.
Final meal
In sum, we hold that the resignation of the petitioner cannot be doubted. It

was confirmed by his leaving Malacaang. In the press release containing
his final statement, (1) he acknowledged the oath-taking of the respondent
as President of the Republic albeit with reservation about its legality; (2) he
emphasized he was leaving the Palace, the seat of the presidency, for the
sake of peace and in order to begin the healing process of our nation. He
did not say he was leaving the Palace due to any kind inability and that he
was going to re-assume the presidency as soon as the disability
12 noon Gloria takes her oath as president of the Republic of the

Philippines.
12:20 p.m. The PSG distributes firearms to some people inside
the compound.
148
disappears: (3) he expressed his gratitude to the people for the opportunity
to serve them. Without doubt, he was referring to the past opportunity
given him to serve the people as President (4) he assured that he will not
shirk from any future challenge that may come ahead in the same service
of our country. Petitioner's reference is to a future challenge after
occupying the office of the president which he has given up; and (5) he
called on his supporters to join him in the promotion of a constructive
national spirit of reconciliation and solidarity. Certainly, the national spirit
of reconciliation and solidarity could not be attained if he did not give up
the presidency. The press release was petitioner's valedictory, his final act
of farewell. His presidency is now in the part tense.
After petitioner contended that as a matter of fact he did not resign, he

also argues that he could not resign as a matter of law. He relies on section
12 of RA No. 3019, otherwise known as the Anti-graft and Corrupt Practices
Act, which allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to resign or retire
pending an investigation, criminals or administrative, or pending a
prosecution against him, for any offense under this Act or under
the provisions of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide any
comfort to the petitioner. RA No. 3019 originated form Senate Bill No. 293.
The original draft of the bill, when it was submitted to the Senate, did not
contain a provision similar to section 12 of the law as it now stands.
However, in his sponsorship speech, Senator Arturo Tolentino, the author of
the bill, "reserved to propose during the period of amendments the
inclusion of a provision to the effect that no public official who is under
prosecution for any act of graft or corruption, or is under administrative
investigation, shall be allowed to voluntarily resign or retire." 92 During the
period of amendments, the following provision was inserted as section 15:
It is, however, urged that the petitioner did not resign but only took a
temporary leave dated January 20, 2001 of the petitioner sent to Senate
President Pimentel and Speaker Fuentebella is cited. Again, we refer to the
said letter, viz:
"Sir.
By virtue of the provisions of Section II, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By operation
of law and the Constitution, the Vice President shall be the Acting
president.
"Sec. 15. Termination of office No public official shall be allowed

to resign or retire pending an investigation, criminal or
administrative, or pending a prosecution against him, for any
offense under the Act or under the provisions of the Revised Penal
Code on bribery.
(Sgd.) Joseph Ejercito Estrada"
The separation or cessation of a public official form office shall not

be a bar to his prosecution under this Act for an offense committed
during his incumbency."93
To say the least, the above letter is wrapped in mystery. 91 The pleadings
filed by the petitioner in the cases at bar did not discuss, may even
intimate, the circumstances that led to its preparation. Neither did the
counsel of the petitioner reveal to the Court these circumstances during
the oral argument. It strikes the Court as strange that the letter, despite its
legal value, was never referred to by the petitioner during the week-long
crisis. To be sure, there was not the slightest hint of its existence when he
issued his final press release. It was all too easy for him to tell the Filipino
people in his press release that he was temporarily unable to govern and
that he was leaving the reins of government to respondent Arroyo for the
time bearing. Under any circumstance, however, the mysterious letter
cannot negate the resignation of the petitioner. If it was prepared before
the press release of the petitioner clearly as a later act. If, however, it was
prepared after the press released, still, it commands scant legal
significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the
resignation is the result of his reputation by the people. There is another
reason why this Court cannot given any legal significance to petitioner's
letter and this shall be discussed in issue number III of this Decision.
The bill was vetoed by then President Carlos P. Garcia who questioned the
legality of the second paragraph of the provision and insisted that the
President's immunity should extend after his tenure.
Senate Bill No. 571, which was substantially similar Senate Bill No. 293,
was thereafter passed. Section 15 above became section 13 under the new
bill, but the deliberations on this particular provision mainly focused on the
immunity of the President, which was one of the reasons for the veto of the
original bill. There was hardly any debate on the prohibition against the
resignation or retirement of a public official with pending criminal and
administrative cases against him. Be that as it may, the intent of the law
ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the
investigation of a pending criminal or administrative case against him and
to prevent his prosecution under the Anti-Graft Law or prosecution for
bribery under the Revised Penal Code. To be sure, no person can be
compelled to render service for that would be a violation of his
149
constitutional right.94 A public official has the right not to serve if he really
wants to retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or
prosecution, such resignation or retirement will not cause the dismissal of
the criminal or administrative proceedings against him. He cannot use his
resignation or retirement to avoid prosecution.
for in section 11 of article VII." 95 This contention is the centerpiece of

petitioner's stance that he is a President on leave and respondent Arroyo
is only an Acting President.
An examination of section 11, Article VII is in order. It provides:
"SEC. 11. Whenever the President transmits to the President of the
Senate and the Speaker of the House of Representatives his written
declaration that he is unable to discharge the powers and duties of
his office, and until he transmits to them a written declaration to
the contrary, such powers and duties shall be discharged by the
Vice-President as Acting President.
There is another reason why petitioner's contention should be rejected. In

the cases at bar, the records show that when petitioner resigned on
January 20, 2001, the cases filed against him before the Ombudsman were
OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-001758. While these cases have been filed, the respondent Ombudsman
refrained from conducting the preliminary investigation of the petitioner for
the reason that as the sitting President then, petitioner was immune from
suit. Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019
cannot therefore be invoked by the petitioner for it contemplates of cases
whose investigation or prosecution do not suffer from any insuperable legal
obstacle like the immunity from suit of a sitting President.
Whenever a majority of all the Members of the Cabinet transmit to

the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the VicePresident shall immediately assume the powers and duties of the
office as Acting President.
Petitioner contends that the impeachment proceeding is an administrative

investigation that, under section 12 of RA 3019, bars him from resigning.
We hold otherwise. The exact nature of an impeachment proceeding is
debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner
resigned because the process already broke down when a majority of the
senator-judges voted against the opening of the second envelope, the
public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were
postponed indefinitely. There was, in effect, no impeachment case pending
against petitioner when he resigned.
Thereafter, when the President transmits to the President of the

Senate and to the Speaker of the House of Representatives his
written declaration that no inability exists, he shall reassume the
powers and duties of his office. Meanwhile, should a majority of all
the Members of the Cabinet transmit within five days to the
President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the
Congress shall decide the issue. For that purpose, the Congress
shall convene, if it is not in session, within forty-eight hours, in
accordance with its rules and without need of call.
III
If the Congress, within ten days after receipt of the last written
declaration, or, if not in session, within twelve days after it is
required to assemble, determines by a two-thirds vote of both
Houses, voting separately, that the President is unable to discharge
the powers and duties of his office, the Vice-President shall act as
President; otherwise, the President shall continue exercising the
powers and duties of his office."
Whether or not the petitioner Is only temporarily unable to Act as

President.
We shall now tackle the contention of the petitioner that he is merely
temporarily unable to perform the powers and duties of the presidency,
and hence is a President on leave. As aforestated, the inability claim is
contained in the January 20, 2001 letter of petitioner sent on the same day
to Senate President Pimentel and Speaker Fuentebella.
That is the law. Now, the operative facts:

1.
Petitioner postulates that respondent Arroyo as Vice President has no

power to adjudge the inability of the petitioner to discharge the powers
and duties of the presidency. His significant submittal is that "Congress has
the ultimate authority under the Constitution to determine whether the
President is incapable of performing his functions in the manner provided
150
Petitioner, on January 20, 2001, sent the above letter

claiming inability to the Senate President and Speaker of
the House;
2.
Unaware of the letter, respondent Arroyo took her oath of

office as President on January 20, 2001 at about 12:30
p.m.;
tension, to heal social and political wounds, and to be an

instrument of national reconciliation and solidarity as it is a direct
representative of the various segments of the whole nation;
3.
Despite receipt of the letter, the House of Representatives

passed on January 24, 2001 House Resolution No. 175;96
WHEREAS, without surrending its independence, it is vital for the

attainment of all the foregoing, for the House of Representatives to
extend its support and collaboration to the administration of Her
Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest
demanding no less: Now, therefore, be it
On the same date, the House of the Representatives passed House

Resolution No. 17697 which states:
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS
AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A
PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION
Resolved by the House of Representatives, To express its support

to the assumption into office by Vice President Gloria MacapagalArroyo as President of the Republic of the Philippines, to extend its
congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the
Constitution.
WHEREAS, as a consequence of the people's loss of confidence on

the ability of former President Joseph Ejercito Estrada to effectively
govern, the Armed Forces of the Philippines, the Philippine National
Police and majority of his cabinet had withdrawn support from him;
Adopted,
WHEREAS, upon authority of an en banc resolution of the Supreme

Court, Vice President Gloria Macapagal-Arroyo was sworn in as
President of the Philippines on 20 January 2001 before Chief Justice
Hilario G. Davide, Jr.;
This Resolution was adopted by the House of Representatives on

January 24, 2001.
(Sgd.)
Speaker
FELICIANO
(Sgd.)
ROBERTO
Secretary General"
WHEREAS, immediately thereafter, members of the international

community had extended their recognition to Her Excellency,
Gloria Macapagal-Arroyo as President of the Republic of the
Philippines;
BELMONTE
P.
JR.
NAZARENO
On February 7, 2001, the House of the Representatives passed House

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGALARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR.
AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has

espoused a policy of national healing and reconciliation with justice
for the purpose of national unity and development;
WHEREAS, there is a vacancy in the Office of the Vice President

due to the assumption to the Presidency of Vice President Gloria
Macapagal-Arroyo;
WHEREAS, it is axiomatic that the obligations of the government

cannot be achieved if it is divided, thus by reason of the
constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to
the supreme will of the people, the House of Representatives must
ensure to the people a stable, continuing government and
therefore must remove all obstacles to the attainment thereof;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the

President in the event of such vacancy shall nominate a Vice
President from among the members of the Senate and the House
of Representatives who shall assume office upon confirmation by a
majority vote of all members of both Houses voting separately;
WHEREAS, it is a concomitant duty of the House of Representatives

to exert all efforts to unify the nation, to eliminate fractious
151

nominated Senate Minority Leader Teofisto T. Guingona Jr., to the
position of Vice President of the Republic of the Philippines;
WHEREAS, the Senate of the Philippines has been the forum for
vital legislative measures in unity despite diversities in
perspectives;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant

endowed with integrity, competence and courage; who has served
the Filipino people with dedicated responsibility and patriotism;
WHEREFORE, we recognize and express support to the new

government of President Gloria Macapagal-Arroyo and resolve to
discharge and overcome the nation's challenges." 99
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling

qualities of true statesmanship, having served the government in
various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines qualities
which merit his nomination to the position of Vice President of the
Republic: Now, therefore, be it
On February 7, the Senate also passed Senate Resolution No.

82100 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL
ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS
VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is vacancy in the Office of the Vice President due
to the assumption to the Presidency of Vice President Gloria
Macapagal-Arroyo;
Resolved as it is hereby resolved by the House of

Representatives, That the House of Representatives confirms the
nomination of Senator Teofisto T. Guingona, Jr. as the Vice President
JR.
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the

President in the event of such vacancy shall nominate a Vice
President from among the members of the Senate and the House
of Representatives who shall assume office upon confirmation by a
majority vote of all members of both Houses voting separately;
This Resolution was adopted by the House of Representatives on

February 7, 2001.

nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the
position of Vice President of the Republic of the Philippines;
Adopted,
(Sgd.)
Speaker
FELICIANO
(Sgd.)
ROBERTO
Secretary General"
BELMONTE
P.
NAZARENO
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant

endowed with integrity, competence and courage; who has served
the Filipino people with dedicated responsibility and patriotism;
(4) Also, despite receipt of petitioner's letter claiming inability,

some twelve (12) members of the Senate signed the following:
WHEREAS, the recent transition in government offers the nation an

opportunity for meaningful change and challenge;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities

of true statemanship, having served the government in various
capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the land - which qualities
merit his nomination to the position of Vice President of the
Republic: Now, therefore, be it
WHEREAS, to attain desired changes and overcome awesome

challenges the nation needs unity of purpose and resolve cohesive
resolute (sic) will;
Resolved, as it is hereby resolved, That the Senate confirm the

nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the
Republic of the Philippines.
"RESOLUTION
Adopted,
152
(Sgd.)
AQUILINO
President of the Senate
Q.
PIMENTEL
JR.
(5) On February 8, the Senate also passed Resolution No. 84 "certifying

to the existence of vacancy in the Senate and calling on the COMELEC to
fill up such vacancy through election to be held simultaneously with the
regular election on May 14, 2001 and the Senatorial candidate garnering
the thirteenth (13th) highest number of votes shall serve only for the
unexpired term of Senator Teofisto T. Guingona, Jr.'
This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.)
LUTGARDO
Secretary of the Senate"
B.
BARBO
(6) Both houses of Congress started sending bills to be signed into

law by respondent Arroyo as President.
On the same date, February 7, the Senate likewise passed Senate

(7) Despite the lapse of time and still without any functioning Cabinet,
without any recognition from any sector of government, and without any
support from the Armed Forces of the Philippines and the Philippine
National Police, the petitioner continues to claim that his inability to govern
is only momentary.
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT

IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that
the Impeachment Court is functus officioand has been terminated.
What leaps to the eye from these irrefutable facts is that both
houses of Congress have recognized respondent Arroyo as the
President. Implicitly clear in that recognition is the premise that
the inability of petitioner Estrada. Is no longer temporary.
Congress has clearly rejected petitioner's claim of inability.
Resolved, further, That the Journals of the Impeachment Court on

Monday, January 15, Tuesday, January 16 and Wednesday, January
17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment Court
including the "second envelope" be transferred to the Archives of
the Senate for proper safekeeping and preservation in accordance
with the Rules of the Senate. Disposition and retrieval thereof shall
be made only upon written approval of the Senate president.
The question is whether this Court has jurisdiction to review the

claim
of
temporary
inability
of
petitioner
Estrada and
thereafter revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Taada v.
Cuenco,102 we hold that this Court cannot exercise its judicial power or this
is an issue "in regard to which full discretionary authority has been
delegated to the Legislative xxx branch of the government." Or to use the
language in Baker vs. Carr,103 there is a "textually demonstrable or a lack
of judicially discoverable and manageable standards for resolving it."
Clearly, the Court cannot pass upon petitioner's claim of inability to
discharge the power and duties of the presidency. The question is
political in nature and addressed solely to Congress by
constitutional fiat. It is a political issue, which cannot be decided by this
Court without transgressing the principle of separation of powers.
Resolved, finally. That all parties concerned be furnished copies of

this Resolution.
Adopted,
(Sgd.)
AQUILINO
President of the Senate
Q.
PIMENTEL,
JR.
This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.)
LUTGARDO
Secretary of the Senate"
B.
In fine, even if the petitioner can prove that he did not resign,
still, he cannot successfully claim that he is a President on leave
on the ground that he is merely unable to govern temporarily.
That claim has been laid to rest by Congress and the decision that
respondent Arroyo is the de jure, president made by a co-equal
branch of government cannot be reviewed by this Court.
BARBO
IV
Whether or not the petitioner enjoys immunity from suit.
153
Assuming he enjoys immunity, the extent of the immunity
that portion which touched the liability of judges and drew an

analogy between such liability and that of the Governor-General,
that the latter is liable when he acts in a case so plainly outside of
his power and authority that he can not be said to have exercised
discretion in determining whether or not he had the right to act.
What is held here is that he will be protected from personal liability
for damages not only when he acts within his authority, but also
when he is without authority, provided he actually used discretion
and judgement, that is, the judicial faculty, in determining whether
he had authority to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he is still protected
provided the question of his authority was one over which two
men, reasonably qualified for that position, might honestly differ;
but he s not protected if the lack of authority to act is so plain that
two such men could not honestly differ over its determination. In
such case, be acts, not as Governor-General but as a private
individual, and as such must answer for the consequences of his
act."
Petitioner Estrada makes two submissions: first, the cases filed against
him before the respondent Ombudsman should be prohibited because he
has not been convicted in the impeachment proceedings against him;
and second, he enjoys immunity from all kinds of suit, whether criminal
or civil.
Before resolving petitioner's contentions, a revisit of our legal history
executive immunity will be most enlightening. The doctrine of executive
immunity in this jurisdiction emerged as a case law. In the 1910 case of
Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a
Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of
the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police and
Chief of the Secret Service of the City of Manila, respectively, for damages
for allegedly conspiring to deport him to China. In granting a writ of
prohibition, this Court, speaking thru Mr. Justice Johnson, held:
" The principle of nonliability, as herein enunciated, does not mean
that the judiciary has no authority to touch the acts of the
Governor-General; that he may, under cover of his office, do what
he will, unimpeded and unrestrained. Such a construction would
mean that tyranny, under the guise of the execution of the law,
could walk defiantly abroad, destroying rights of person and of
property, wholly free from interference of courts or legislatures.
This does not mean, either that a person injured by the executive
authority by an act unjustifiable under the law has n remedy, but
must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of
the Legislature, may not be personally mulcted in civil damages for
the consequences of an act executed in the performance of his
official duties. The judiciary has full power to, and will, when the
mater is properly presented to it and the occasion justly warrants
it, declare an act of the Governor-General illegal and void and
place as nearly as possible in status quo any person who has been
deprived his liberty or his property by such act. This remedy is
assured to every person, however humble or of whatever country,
when his personal or property rights have been invaded, even by
the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which
result from the performance of his official duty, any more than it
can a member of the Philippine Commission of the Philippine
Assembly. Public policy forbids it.
Mr. Justice Johnson underscored the consequences if the Chief Executive

was not granted immunity from suit, viz"xxx. Action upon important
matters of state delayed; the time and substance of the chief executive
spent in wrangling litigation; disrespect engendered for the person of one
of the highest officials of the state and for the office he occupies; a
tendency to unrest and disorder resulting in a way, in distrust as to the
integrity of government itself."105
Our 1935 Constitution took effect but it did not contain any specific
provision on executive immunity. Then came the tumult of the martial law
years under the late President Ferdinand E. Marcos and the 1973
Constitution was born. In 1981, it was amended and one of the
amendments involved executive immunity. Section 17, Article VII stated:
"The President shall be immune from suit during his tenure.
Thereafter, no suit whatsoever shall lie for official acts done by him
or by others pursuant to his specific orders during his tenure.
The immunities herein provided shall apply to the incumbent
President referred to in Article XVII of this Constitution.
In his second Vicente G. Sinco professional Chair lecture entitled,
"Presidential Immunity and All The King's Men: The Law of Privilege As a
Defense To Actions For Damages,"106 petitioner's learned counsel, former
Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the
modifications effected by this constitutional amendment on the existing
law on executive privilege. To quote his disquisition:
Neither does this principle of nonliability mean that the chief

executive may not be personally sued at all in relation to acts
which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly
154
"In the Philippines, though, we sought to do the Americans one

better by enlarging and fortifying the absolute immunity concept.
First, we extended it to shield the President not only form civil
claims but also from criminal cases and other claims. Second, we
enlarged its scope so that it would cover even acts of the President
outside the scope of official duties. And third, we broadened its
coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who
acted upon orders of the President. It can be said that at that point
most of us were suffering from AIDS (or absolute immunity defense
syndrome)."
Fr. Bernas. There is no need. It was that way before. The only
innovation made by the 1973 Constitution was to make that
explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more
query, Madam President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the light of this
history. We reject his argument that he cannot be prosecuted for the
reason that he must first be convicted in the impeachment proceedings.
The impeachment trial of petitioner Estrada was aborted by the walkout of
the prosecutors and by the events that led to his loss of the presidency.
Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83
"Recognizing that the Impeachment Court is Functus Officio." 109 Since, the
Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he
can be prosecuted. The plea if granted, would put a perpetual bar against
his prosecution. Such a submission has nothing to commend itself for it will
place him in a better situation than a non-sitting President who has not
been subjected to impeachment proceedings and yet can be the object of
a criminal prosecution. To be sure, the debates in the Constitutional
Commission make it clear that when impeachment proceedings have
become moot due to the resignation of the President, the proper criminal
and civil cases may already be filed against him, viz:110
The Opposition in the then Batasan Pambansa sought the repeal of this
Marcosian concept of executive immunity in the 1973 Constitution. The
move was led by them Member of Parliament, now Secretary of Finance,
Alberto Romulo, who argued that the after incumbency immunity granted
to President Marcos violated the principle that a public office is a public
trust. He denounced the immunity as a return to the anachronism "the king
can do no wrong."107 The effort failed.
The 1973 Constitution ceased to exist when President Marcos was ousted
from office by the People Power revolution in 1986. When the 1987
Constitution was crafted, its framers did not reenact the executive
immunity provision of the 1973 Constitution. The following explanation was
given by delegate J. Bernas vis:108
"Mr. Suarez. Thank you.
"xxx
The last question is with reference to the Committee's omitting in
the draft proposal the immunity provision for the President. I agree
with Commissioner Nolledo that the Committee did very well in
striking out second sentence, at the very least, of the original
provision on immunity from suit under the 1973 Constitution. But
would the Committee members not agree to a restoration of at
least the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not provide him
that kind of an immunity, he might be spending all his time facing
litigation's, as the President-in-exile in Hawaii is now facing
litigation's almost daily?
Mr. Aquino. On another point, if an impeachment proceeding has

been filed against the President, for example, and the President
resigns before judgement of conviction has been rendered by the
impeachment court or by the body, how does it affect the
impeachment proceeding? Will it be necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove
one from office, then his resignation would render the case moot
and academic. However, as the provision says, the criminal and
civil aspects of it may continue in the ordinary courts."
Fr. Bernas. The reason for the omission is that we consider it

understood in present jurisprudence that during his tenure he is
immune from suit.
This is in accord with our ruling In Re: Saturnino Bermudez 111 that
'incumbent Presidents are immune from suit or from being brought to court
during the period of their incumbency and tenure" but not beyond.
Considering the peculiar circumstance that the impeachment process
against the petitioner has been aborted and thereafter he lost the
presidency, petitioner Estrada cannot demand as a condition sine qua non
to his criminal prosecution before the Ombudsman that he be convicted in
Mr. Suarez. So there is no need to express it here.
155
the impeachment proceedings. His reliance on the case of Lecaroz vs.

Sandiganbayan112 and related cases113 are inapropos for they have a
different factual milieu.
times be accountable to the people, serve them with utmost responsibility,

integrity, loyalty, and efficiency act with patriotism and justice, and lead
modest lives."120 It set the rule that 'the right of the State to recover
properties unlawfully acquired by public officials or employees, from them
or from their nominees or transferees, shall not be barred by prescription,
latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft
court.122 It created the office of the Ombudsman and endowed it with
enormous powers, among which is to "investigate on its own, or on
complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be
illegal, unjust improper or inefficient." 123 The Office of the Ombudsman was
also given fiscal autonomy.124 These constitutional policies will be devalued
if we sustain petitioner's claim that a non-sitting president enjoys immunity
from suit for criminal acts committed during his incumbency.
We now come to the scope of immunity that can be claimed by petitioner

as a non-sitting President. The cases filed against petitioner Estrada are
criminal in character. They involve plunder, bribery and graft and
corruption. By no stretch of the imagination can these crimes, especially
plunder which carries the death penalty, be covered by the alleged mantle
of immunity of a non-sitting president. Petitioner cannot cite any decision
of this Court licensing the President to commit criminal acts and wrapping
him with post-tenure immunity from liability. It will be anomalous to hold
that immunity is an inoculation from liability for unlawful acts and
conditions. The rule is that unlawful acts of public officials are not acts of
the State and the officer who acts illegally is not acting as such but stands
in the same footing as any trespasser.114
Indeed, critical reading of current literature on executive immunity will

reveal a judicial disinclination to expand the privilege especially when it
impedes the search for truth or impairs the vindication of a right. In the
1974 case of US v. Nixon, 115 US President Richard Nixon, a sitting President,
was subpoenaed to produce certain recordings and documents relating to
his conversations with aids and advisers. Seven advisers of President
Nixon's associates were facing charges of conspiracy to obstruct Justice
and other offenses, which were committed in a burglary of the Democratic
National Headquarters in Washington's Watergate Hotel during the 972
presidential campaign. President Nixon himself was named an unindicted
co-conspirator. President Nixon moved to quash the subpoena on the
ground, among others, that the President was not subject to judicial
process and that he should first be impeached and removed from office
before he could be made amenable to judicial proceedings. The claim was
rejected by the US Supreme Court. It concluded that "when the ground for
asserting privilege as to subpoenaed materials sought for use in a criminal
trial is based only on the generalized interest in confidentiality, it cannot
prevail over the fundamental demands of due process of law in the fair
administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the
president from civil damages covers only "official acts." Recently, the US
Supreme Court had the occasion to reiterate this doctrine in the case of
Clinton v. Jones117 where it held that the US President's immunity from suits
for money damages arising out of their official acts is inapplicable to
unofficial conduct.
Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be
stopped from conducting the investigation of the cases filed against him
due to the barrage of prejudicial publicity on his guilt. He submits that the
respondent Ombudsman has developed bias and is all set file the criminal
cases violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought on
how to deal with the rain of unrestrained publicity during the investigation
and trial of high profile cases. 125 The British approach the problem with the
presumption that publicity will prejudice a jury. Thus, English courts readily
stay and stop criminal trials when the right of an accused to fair trial
suffers a threat.126 The American approach is different. US courts assume a
skeptical approach about the potential effect of pervasive publicity on the
right of an accused to a fair trial. They have developed different strains of
tests to resolve this issue, i.e., substantial; probability of irreparable harm,
strong likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been raised in
this Court to stop the trials or annul convictions in high profile criminal
cases.127 In People vs. Teehankee, Jr., 128 later reiterated in the case of
Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:
There are more reasons not to be sympathetic to appeals to stretch the

scope of executive immunity in our jurisdiction. One of the great themes of
the 1987 Constitution is that a public office is a public trust. 118 It declared
as a state policy that "the State shall maintain honesty and integrity in the
public service and take positive and effective measures against graft and
corruptio."119 it ordained that "public officers and employees must at all
"We cannot sustain appellant's claim that he was denied the right
to impartial trial due to prejudicial publicity. It is true that the print
and broadcast media gave the case at bar pervasive publicity, just
like all high profile and high stake criminal trials. Then and now, we
156
rule that the right of an accused to a fair trial is not incompatible to

a free press. To be sure, responsible reporting enhances accused's
right to a fair trial for, as well pointed out, a responsible press has
always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and
judicial processes to extensive public scrutiny and criticism.
"Again petitioners raise the effect of prejudicial publicity on their

right to due process while undergoing preliminary investigation. We
find no procedural impediment to its early invocation considering
the substantial risk to their liberty while undergoing a preliminary
investigation.
Pervasive publicity is not per se prejudicial to the right of an

accused to fair trial. The mere fact that the trial of appellant was
given a day-to-day, gavel-to-gavel coverage does not by itself
prove that the publicity so permeated the mind of the trial judge
and impaired his impartiality. For one, it is impossible to seal the
minds of members of the bench from pre-trial and other off-court
publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our
breakfast tables and right to our bedrooms. These news form part
of our everyday menu of the facts and fictions of life. For another,
our idea of a fair and impartial judge is not that of a hermit who is
out of touch with the world. We have not installed the jury system
whose members are overly protected from publicity lest they lose
there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera
performances of parties to litigation. Their mere exposure to
publications and publicity stunts does not per se fatally infect their
impartiality.
The democratic settings, media coverage of trials of sensational

cases cannot be avoided and oftentimes, its excessiveness has
been
aggravated
by
kinetic
developments
in
the
telecommunications industry. For sure, few cases can match the
high volume and high velocity of publicity that attended the
preliminary investigation of the case at bar. Our daily diet of facts
and fiction about the case continues unabated even today.
Commentators still bombard the public with views not too many of
which are sober and sublime. Indeed, even the principal actors in
the case the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility
of media abuses and their threat to a fair trial notwithstanding,
criminal trials cannot be completely closed to the press and public.
In the seminal case of Richmond Newspapers, Inc. v. Virginia, it
was
xxx
xxx
a.
At best, appellant can only conjure possibility of prejudice on the

part of the trial judge due to the barrage of publicity that
characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of
prejudice and adopted the test of actual prejudice as we ruled that
to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the
case at a bar, the records do not show that the trial judge
developed actual bias against appellants as a consequence of the
extensive media coverage of the pre-trial and trial of his case. The
totality of circumstances of the case does not prove that the trial
judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during
the trial. Appellant has the burden to prove this actual bias and he
has not discharged the burden.'
We expounded further on this doctrine in the subsequent case of Webb vs.
Hon. Raul de Leon, etc.130 and its companion cases, viz:
157
The historical evidence of the evolution of the criminal trial

in Anglo-American justice demonstrates conclusively that
at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been
presumptively open, thus giving assurance that the
proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or
decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was
recognized when a shocking crime occurs a community
reaction of outrage and public protest often follows, and
thereafter the open processes of justice serve an important
prophylactic purpose, providing an outlet for community
concern, hostility and emotion. To work effectively, it is
important that society's criminal process satisfy the
appearance of justice,' Offutt v. United States, 348 US 11,
14, 99 L ED 11, 75 S Ct 11, which can best be provided by
allowing people to observe such process. From this
unbroken, uncontradicted history, supported by reasons as
valid today as in centuries past, it must be concluded that
a presumption of openness inheres in the very nature of a
criminal trial under this Nation's system of justice, Cf., e,g.,
Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct

1038.
b.
c.
Chief State Prosecutor and Senior State Prosecutors. Their long

experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights
of publicity. Indeed, their 26-page Resolution carries no indubitable
indicia of bias for it does not appear that they considered any
extra-record evidence except evidence properly adduced by the
parties. The length of time the investigation was conducted despite
its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the ground of
bias resulting from their bombardment of prejudicial publicity."
(emphasis supplied)
The freedoms of speech. Press and assembly, expressly

guaranteed by the First Amendment, share a common core
purpose of assuring freedom of communication on matters
relating to the functioning of government. In guaranteeing
freedom such as those of speech and press, the First
Amendment can be read as protecting the right of
everyone to attend trials so as give meaning to those
explicit guarantees; the First Amendment right to receive
information and ideas means, in the context of trials, that
the guarantees of speech and press, standing alone,
prohibit government from summarily closing courtroom
doors which had long been open to the public at the time
the First Amendment was adopted. Moreover, the right of
assembly is also relevant, having been regarded not only
as an independent right but also as a catalyst to augment
the free exercise of the other First Amendment rights with
which the draftsmen deliberately linked it. A trial courtroom
is a public place where the people generally and
representatives of the media have a right to be present,
and where their presence historically has been thought to
enhance the integrity and quality of what takes place.
Applying the above ruling, we hold that there is not enough evidence
to warrant this Court to enjoin the preliminary investigation of the
petitioner by the respondent Ombudsman. Petitioner needs to offer
more than hostile headlines to discharge his burden of proof. 131 He needs to
show more weighty social science evidence to successfully prove the
impaired capacity of a judge to render a bias-free decision. Well to note,
the cases against the petitioner are still undergoing preliminary
investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the
petitioner that the minds of the members of this special panel have already
been infected by bias because of the pervasive prejudicial publicity against
him. Indeed, the special panel has yet to come out with its findings and the
Court cannot second guess whether its recommendation will be
unfavorable to the petitioner.1wphi1.nt
Even though the Constitution contains no provision which

be its terms guarantees to the public the right to attend
criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the
enjoyment of enumerated rights. The right to attend
criminal trial is implicit in the guarantees of the First
Amendment: without the freedom to attend such trials,
which people have exercised for centuries, important
aspects of freedom of speech and of the press be
eviscerated.
The records show that petitioner has instead charged respondent

Ombudsman himself with bias. To quote petitioner's submission, the
respondent Ombudsman "has been influenced by the barrage of slanted
news reports, and he has buckled to the threats and pressures directed at
him by the mobs."132 News reports have also been quoted to establish that
the respondent Ombudsman has already prejudged the cases of the
petitioner133 and it is postulated that the prosecutors investigating the
petitioner will be influenced by this bias of their superior.
Be that as it may, we recognize that pervasive and prejudicial

publicity under certain circumstances can deprive an accused of
his due process right to fair trial. Thus, in Martelino, et al. vs.
Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges
have been unduly influenced, not simply that they might be, by the
barrage of publicity. In the case at bar, we find nothing in the
records that will prove that the tone and content of the publicity
that attended the investigation of petitioners fatally infected the
fairness and impartiality of the DOJ Panel. Petitioners cannot just
rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond
knowing. To be sure, the DOJ Panel is composed of an Assistant
Again, we hold that the evidence proffered by the petitioner

is insubstantial. The accuracy of the news reports referred to by the
petitioner cannot be the subject of judicial notice by this Court especially in
light of the denials of the respondent Ombudsman as to his alleged
prejudice and the presumption of good faith and regularity in the
performance of official duty to which he is entitled. Nor can we adopt the
theory of derivative prejudice of petitioner, i.e., that the prejudice
of respondent Ombudsman flows to his subordinates. In truth, our
Revised Rules of Criminal Procedure, give investigation prosecutors the
independence to make their own findings and recommendations albeit
they are reviewable by their superiors. 134 They can be reversed but they
158
can not be compelled cases which they believe deserve dismissal. In other
words, investigating prosecutors should not be treated like unthinking slot
machines. Moreover, if the respondent Ombudsman resolves to file the
cases against the petitioner and the latter believes that the findings of
probable cause against him is the result of bias, he still has the remedy of
assailing it before the proper court.
WILLIAM F. PERALTA, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.
William F. Peralta in his own behalf.
Office of the Solicitor General Taada for respondent.
City Fiscal Mabanag as amicus curiae.
VI.
FERIA, J.:
Epilogue
Petitioner-defendant, a member of the Metropolitan Constabulary of Manila
charged with the supervision and control of the production, procurement
and distribution of goods and other necessaries as defined in section 1 of
Act No. 9 of the National Assembly of the so-called Republic of the
Philippines, was prosecuted for the crime of robbery as defined and
penalized by section 2 (a) of Act No. 65 of the same Assembly. He was
found guilty and sentenced to life imprisonment, which he commenced to
serve on August 21, 1944, by the Court of Special and Exclusive Criminal
Jurisdiction, created in section 1 of Ordinance No. 7 promulgated by the
President of the so-called Republic of the Philippines, pursuant to the
authority conferred upon him by the Constitution and laws of the said
Republic. And the procedure followed in the trial was the summary one
established in Chapter II of Executive Order No. 157 of the Chairman of the
Executive Commission, made applicable to the trial violations of said Act
No. 65 by section 9 thereof and section 5 of said Ordinance No. 7.
A word of caution to the "hooting throng." The cases against the petitioner
will now acquire a different dimension and then move to a new stage - - the Office of the Ombudsman. Predictably, the call from the majority for
instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent
Ombudsman to balance the right of the State to prosecute the guilty and
the right of an accused to a fair investigation and trial which has been
categorized as the "most fundamental of all freedoms."135To be sure, the
duty of a prosecutor is more to do justice and less to prosecute. His is the
obligation to insure that the preliminary investigation of the petitioner shall
have a circus-free atmosphere. He has to provide the restraint against
what Lord Bryce calls "the impatient vehemence of the majority." Rights in
a democracy are not decided by the mob whose judgment is dictated by
rage and not by reason. Nor are rights necessarily resolved by the power of
number for in a democracy, the dogmatism of the majority is not and
should never be the definition of the rule of law. If democracy has proved
to be the best form of government, it is because it has respected the right
of the minority to convince the majority that it is wrong. Tolerance of
multiformity of thoughts, however offensive they may be, is the key to
man's progress from the cave to civilization. Let us not throw away that key
just to pander to some people's prejudice.
The petition for habeas corpus is based on the ground that the Court of
Special and Executive Criminal Jurisdiction created by Ordinance No. 7
"was a political instrumentality of the military forces of the Japanese
Imperial Army, the aims and purposes of which are repugnant to those
aims and political purposes of the Commonwealth of the Philippines, as
well as those of the United States of America, and therefore, null and void
ab initio," that the provisions of said Ordinance No. 7 are violative of the
fundamental laws of the Commonwealth of the Philippines and "the
petitioner has been deprived of his constitutional rights"; that the
petitioner herein is being punished by a law created to serve the political
purpose of the Japanese Imperial Army in the Philippines, and "that the
penalties provided for are much (more) severe than the penalties provided
for in the Revised Penal Code."
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging

the respondent Gloria Macapagal-Arroyo as the de jure 14th President of the
Republic are DISMISSED.
SO ORDERED.
SUPREME COURT
Manila
The Solicitor General, in his answer in behalf of the respondent, states that,
in his own opinion, for the reasons expressed in his brief in the case
of People of the Philippines, plaintiff-appellant, vs. Benedicto Jose y Santos,
defendant-appellee, G. R. No. L-22 (p. 612, post), the acts and proceedings
taken and had before the said Court of Special and Exclusive Criminal
Jurisdiction which resulted in the conviction and imprisonment of the herein
petitioner, should now be denied force and efficacy, and therefore the
petition for habeas corpus should be granted. The reasons advanced by the
EN BANC
G.R. No. L-49
November 12, 1945

159
Solicitor General in said brief and in his reply memorandum in support of

his contention are, that the Court of Special and Exclusive Criminal
Jurisdiction created, and the summary procedure prescribed therefor, by
said Ordinance No. 7 in connection with Executive Order No. 157 of the
Chairman of the Executive Commission are tinged with political
complexion; that the procedure prescribed in Ordinance No. 7 does not
afford a fair trial, violates the Constitution of the Commonwealth, and
impairs the Constitutional rights of accused persons under their legitimate
Constitution. And he cites, in support of this last proposition, the decisions
of the Supreme Court of the United States in the cases of Texas vs. White
(7 Wall., 700, 743); Horn vs. Lockart (17 Wall., 570, 581); United
States vs. Home Insurance Co. (22 Wall., 99, 104); Sprott vs. United States
(20 Wall., 459).
In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp.
113, 127, ante), recently decided, this Court, speaking through the Justice
who pens this decision, held:
In view of the foregoing, it is evident that the Philippines Executive
Commission, which was organized by Order No. 1, issued on
January 23, 1942, by the Commander of the Japanese forces, was a
civil government established by the military forces of occupation
and therefore a de facto government of the second kind. It was not
different from the government established by the British in Castine,
Maine, or by the United States in Tanpico, Mexico. As Halleck says,
"the government established over an enemy's territory during the
military occupation may exercise all the powers given by the laws
of war to the conqueror over the conquered, and is subject to all
restrictions which that code imposes. It is of little consequence
whether such government be called a military or civil government.
Its character is the same and the source of its authority the same.
In either case it is a government imposed by the laws of war and so
far as it concerns the inhabitants of such territory or the rest of the
world those laws alone determine the legality or illegality of its
acts." (vol. 2 p. 466.) The fact that the Philippine Executive
Commission was a civil and not a military government and was run
by Filipinos and not by Japanese nationals is of no consequence.
The City Fiscal of Manila appeared before this Court as amicus curiae. In his
memorandum he submits that the petition for habeas corpus be denied on
the following grounds: That the Court of Special and Exclusive Criminal
Jurisdiction and the Acts, Ordinances and Executive Orders, creating it are
not of a political complexion, for said Court was created, and the crimes
and offenses placed under its jurisdiction were penalized heavily, in
response to an urgent necessity, according to the preamble of Ordinance
No. 7; that the right to appeal in a criminal case is not a constitutional
right; and that the summary procedure established in said Ordinance No. 7
is not violative of the provision of Article III, section 1 (18) of the
Constitution of the Commonwealth, to the effect that no person shall be
compelled to be a witness against himself, nor of the provision of section 1
(1) of the same Article that no person shall be deprived of life, liberty, or
property without due process of law.
And speaking of the so-called Republic of the Philippines in the same

decision, this Court said:
The so-called Republic of the Philippines, apparently established
and organized as a sovereign state independent from any other
government by the Filipino people, was, in truth and reality, a
government established by the belligerent occupant or the
Japanese forces of occupation. It was of the same character as the
Philippine Executive Commission, and the ultimate source of its
authority was the same the Japanese military authority and
government. As General MacArthur stated in his proclamation of
October 23, 1944, a portion of which has been already quoted,
"under enemy duress, a so-called government styled as the
'Republic of the Philippines' was established on October 14, 1943,
based upon neither the free expression of the peoples" will nor the
sanction of the Government of the United States.' Japan had no
legal power to grant independence to the Philippines or transfer
the sovereignty of the United States to, or recognize the latent
sovereignty of the Filipino people, before its military occupation
and possession of the Islands had matured into an absolute and
permanent dominion or sovereignty by a treaty of peace or other
means recognized in the law of nations.
The features of the summary procedure adopted by Ordinance No. 7,

assailed by the petitioner and the Solicitor General as impairing the
constitutional rights of an accused are: that court may interrogate the
accused and witnesses before trial in order to clarify the points in dispute;
that the refusal of the accused to answer the questions may be considered
unfavorable to him; that if from the facts admitted at the preliminary
interrogatory it appears that the defendant is guilty, he may be
immediately convicted; and that the sentence of the sentence of the court
is not appealable, except in case of death penalty which cannot be
executed unless and until reviewed and affirmed by a special division of
the Supreme Court composed of three Justices.
Before proceeding further, and in order to determine the law applicable to
the questions involved in the present case, it is necessary to bear in mind
the nature and status of the government established in these Islands by
the Japanese forces of occupation under the designation of Republic of the
Philippines.
160
As the so-called Republic of the Philippines was a de facto government of

the second kind (of paramount force), as the government established in
Castine, Maine, during its occupation by the British forces and as that of
Tampico, Mexico, occupied during the war with that the country by the
United State Army, the question involved in the present case cannot be
decided in the light of the Constitution of the Commonwealth Government;
because the belligerent occupant was totally independent of the
constitution of the occupied territory in carrying out the administration
over said territory; and the doctrine laid down by the Supreme Court of the
United States in the cases involving the validity of judicial and legislative
acts of the Confederate States, considered as de facto governments of the
third kind, does not apply to the acts of the so-called Republic of the
Philippines which is a de facto government of paramount force. The
Constitution of the so-called Republic of the Philippines can neither be
applied, since the validity of an act of a belligerent occupant cannot be
tested in the light of another act of the same occupant, whose criminal
jurisdiction is drawn entirely from the law martial as defined in the usages
of nations.
laws and the estate constitution, subject to the Constitution of the United
States,
remained
unimpaired
during
the
War
of
Secession
(Texas vs. White, supra) and that the Confederate States "in most, if not in
all instances, merely transferred the existing state organizations to the
support of a new and different national head. the same constitution, the
same laws for the protection of the property and personal rights remained
and were administered by the same officers." (Sprott vs. United
States, supra). In fine, because in the case of the Confederate States, the
constitution of each state and that of the United States or the Union
continued in force in those states during the War of Secession; while the
Constitution of the Commonwealth Government was suspended during the
occupation of the Philippines by the Japanese forces of the belligerent
occupant at regular war with the United States.
The question which we have to resolve in the present case in the light of
the law of nations are, first, the validity of the creation of the Court of
Special and Exclusive Criminal Jurisdiction, and of the summary procedure
adopted for that court; secondly, the validity of the sentence which
imprisonment during the Japanese military occupation; and thirdly, if they
were then valid, the effect on said punitive sentence of the reoccupation of
the Philippines and the restoration therein of the Commonwealth
Government.
In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court
of the United States held that, by the military occupation of Castine, Maine,
the sovereignty of the United States in the territory was, of course,
suspended, and the laws of the United States could no longer be rightfully
enforced there or be obligatory upon the inhabitants who remained and
submitted to the belligerent occupant. By the surrender the inhabitants
passed under a temporary allegiance to the British government, and were
bound by such laws, and such only, as it chose to recognize and impose.
And Oppenheim, in his Treatise on International Law, says that, in carrying
out the administration over the occupied territory and its inhabitants, "the
(belligerent) occupant is totally independent of the constitution and the
laws of the territory, since occupation is an aim of warfare, and the
maintenance and safety of his forces, and the purpose of war, stand in the
foreground of his interest and must be promoted under all circumstances
or conditions. (Vol. II, Sixth Edition, Revised, 1944, p. 342.)
(1) As to the validity of the creation of the Court of Special and Exclusive
Criminal Jurisdiction by Ordinance No. 7, the only factor to be considered is
the authority of the legislative power which promulgated said law or
ordinance. It is well established in International Law that "The criminal
jurisdiction established by the invader in the occupied territory finds its
source neither in the laws of the conquering or conquered state, it is
drawn entirely form the law martial as defined in the usages of nations.
The authority thus derived can be asserted either through special tribunals,
whose authority and procedure is defined in the military code of the
conquering state, or through the ordinary courts and authorities of the
occupied district." (Taylor, International Public Law, p. 598.) The so-called
Republic of the Philippines, being a governmental instrumentality of the
belligerent occupant, had therefore the power or was competent to create
the Court of Special and Exclusive Criminal Jurisdiction. No question may
arise as to whether or not a court is of political complexion, for it is mere a
governmental agency charged with the duty of applying the law to cases
falling within its jurisdiction. Its judgments and sentences may be of
political complexion, or not depending upon the nature or character of the
law so applied. There is no room for doubt, therefore, as to the validity of
the creation of the court in question.
The doctrine laid down in the decisions of the Supreme Court of the United
States (in the cases of Texas vs. White, 7 Wall., 700; Horn vs. Lockart, 17
Wall., 570; Williams vs. Bruffy, 96 U. S., 176 United States vs. Home
Insurance Co., 20 Wall., 249; Sprott vs. United States, 20 Wall., 459, and
others) that the judicial and legislative acts of the Confederate States
which impaired the rights of the citizens under the Constitution of the
United States or of the States, or were in conflict with those constitutions,
were null and void, is not applicable to the present case. Because that
doctrine rests on the propositions that "the concession (of belligerency)
made to the Confederate Government . . . sanctioned no hostile
legislation . . . and it impaired in no respect the rights of loyal and citizens
as
they
existed
at
the
commencement
of
hostilities"
(Williams vs. Bruffy, supra);that the Union is perpetual and indissoluble,
and the obligation of allegiance to the to the estate and obedience to her
With respect to the Summary procedure adopted by Ordinance No. 7, and

followed in the trial of the case which resulted in the conviction of the
herein petitioner, there is also no question as to the power or competence
of the belligerent occupant to promulgate the law providing for such
procedure. For "the invader deals freely with the relations of the
161
inhabitants of the occupied territory towards himself . . . for his security

also, he declares certain acts, not forbidden by the ordinary laws of the
country, to be punishable; and he so far suspends the laws which guard
personal liberty as is required for the summary punishment of any one
doing such acts." (Hall's International Law, seventh ed., p. 5000). A
belligerent "occupant may where necessary, set up military courts instead
of the ordinary courts; and in case, and in so far as, he admits the
administration of justice by the ordinary courts, he may nevertheless, so
far as is necessary for military purposes, or for the maintenance of public
order and safetytemporarily alter the laws, especially the Criminal Law, on
the basis of which justice is administered as well as the laws regarding
procedure." (Oppenheim's International Law, Vol. II, sixth edition, 1944,
p.349.)
first, the territorial law in general, as that which stands to the public order
and social and commercial life of the district in a relation of mutual
adaptation, so that any needless displacement of it would defeat the object
which the invader is enjoined to have in view, and secondly, such
variations of the territorial law as may be required by real necessity and
are not expressly prohibited by any of the rules which will come before us.
Such variations will naturally be greatest in what concerns the relation of
the communities and individuals within the district to the invading army
and its followers, it being necessary for the protection of the latter, and for
the unhindered prosecution of the war by them, that acts committed to
their detriment shall not only lose what justification the territorial law
might give them as committed against enemies, but shall be repressed
more severely than the territorial law would repress acts committed
against fellow subjects. Indeed the entire relation between the invaders
and the invaded, so far as it may fall within the criminal department
whether by the intrinsic nature of the acts done or in consequence of the
regulations made by the invaders, may be considered as taken out of the
territorial law and referred to what is called martial law." (Westlake,
International Law, Part II, War, p. 96.)
No objection can be set up to the legality of its provisions in the light of the
precepts of our Commonwealth Constitution relating to the rights of
accused under that Constitution, because the latter was not in force during
the period of the Japanese military occupation, as we have already stated.
Nor may said Constitution be applied upon its revival at the time of the reoccupation of the Philippines by virtue of the principle of postliminium
because "a constitution should operate prospectively only, unless the
words employed show a clear intention that it should have a retrospective
effect" (Cooley's Constitutional Limitations, seventh edition, page 97, and
cases quoted and cited in the footnote), especially as regards laws of
procedure applied to cases already terminated completely.
According to Hyde (International Law, Vol. II, p. 386), the term "martial
law," in so far as it is used to describe any fact in relation to belligerent
occupation, does not refer to a particular code or system of law, or to a
special agency entrusted with its administration. The term merely signifies
that the body of law actually applied, having the sanction of military
authority, is essentially martial. All law, by whomsoever administered, in an
occupied district martial law; and it is none the less so when applied by
civil courts in matters devoid of special interest to the occupant. The words
"martial law" are doubtless suggestive of the power of the occupant to
share the law as he sees fit; that is, to determine what shall be deemed
lawful or unlawful acts, to establish tests for ascertaining the guilt of
offenders, to fix penalties, and generally to administer justice through such
agencies as the found expedient.
The only restrictions or limitations imposed upon the power of a belligerent

occupant to alter the laws or promulgate new ones, especially the criminal
law as well as the laws regarding procedure, so far as it is necessary for
military purposes, that is, for his control of the territory and the safety and
protection of his army, are those imposed by the Hague Regulations, the
usages established by civilized nations, the laws of humanity and the
requirements of public conscience. It is obvious that the summary
procedure under consideration does not violate those precepts. It cannot
be considered as violating the laws of humanity and public conscience, for
it is less objectionable, even from the point of view of those who are used
to the accusatory system of criminal procedure than the procedural laws
based on the semi-inquisitorial or mixed system prevailing in France and
other countries in continental Europe.
And the United States Rules of Land Warfare provide that the belligerent
occupant may promulgate such new laws and regulations as military
necessity demands, and in this class will be included those laws which
come into being as a result of military rule; that is, those which establish
new crimes and offenses incident to a state of war and are necessary for
the control of the country and the protection of the army, for the principal
object of the occupant is to provide for the security of the invading army
and to contribute to its support and efficiency and the success of its
operations. (Pub. 1940, pp. 76, 77.)
(2) The validity of the sentence rendered by the Court of Special and
Exclusive Criminal Jurisdiction which imposes life imprisonment upon the
herein petitioner, depends upon the competence or power of the
belligerent occupant to promulgate Act No. 65 which punishes the crime of
which said petitioner was convicted.
From the above it appears clear that it was within the power and
competence of the belligerent occupant to promulgate, through the
National Assembly of the so-called Republic of the Philippines, Act No. 65 of
the said Assembly, which penalizes the crimes of robbery and other
offenses by imprisonment ranging from the maximum period of the
Westlake says that Article XLIII, Section III, of the Hague Conventions of
1907 "indicates that the laws to be enforced by the occupant consist of,
162
imprisonment prescribed by the laws and ordinances promulgated by the

President of the so-called Republic as minimum, to life imprisonment or
death as maximum. Although these crimes are defined in the Revised
Penal Code, they were altered and penalized by said Act No. 65 with
different and heavier penalties, as new crimes and offenses demanded by
military necessity, incident to a state of war, and necessary for the control
of the country by the belligerent occupant, the protection and safety of the
army of occupation, its support and efficiency, and the success of its
operations.
crimes in a broad sense. In this connection Wheaton observes the

following:
"Of 'war crimes' the number is naturally indefinite, depending as they do
on the acts from time to time ordered to be done or forbidden to be done in
the martial law proclamation or regulations of the invading or occupying
commander. Thus, in the Anglo-Boer war, the British military authorities
proclaimed the following to be offenses against their martial law; Being
in possession of arms, ammunition, etc.; traveling without a permit;
sending prohibited goods; holding meetings other than those allowed;
using seditious language; spreading alarmist reports; overcharging for
goods; wearing uniforms without due authority; going out of doors between
certain hours; injuring military animals or stores; being in possession,
without a permit, of horses, vehicles, cycles, etc.; hindering those in
execution of military orders; trespassing on defense works. Such offenses,
together with several others, were specified in the Japanese regulations
made in the Russo-Japanese war." (Wheaton's International Law, War,
seventh edition, 1944, p. 242.)
They are not the same ordinary offenses penalized by the Revised Penal
Code. The criminal acts penalized by said Act No. 65 are those
committed by persons charged or connected with the supervision and
control of the production, procurement and distribution of foods and other
necessaries; and the penalties imposed upon the violators are different
from and much heavier than those provided by the Revised Penal Code for
the same ordinary crimes. The acts penalized by said Act were taken out of
the territorial law or Revised Penal Code, and referred to what is called
martial law by international jurists, defined above by Hyde, in order, not
only to prevent food and other necessaries from reaching the "guerrillas"
which were harassing the belligerent occupant from every nook and corner
of the country, but also to preserve the food supply and other necessaries
in order that, in case of necessity, the Imperial Japanese forces could easily
requisition them, as they did, and as they had the right to do in accordance
with the law of nations for their maintenance and subsistence (Art. LII, Sec.
III, Hague Conventions of 1907). Especially taking into consideration the
fact, of which this court may take judicial notice, that the Imperial Japanese
Army had depended mostly for their supply upon the produce of this
country.
It is, therefore, evident that the sentence rendered by the Court of Special
and Exclusive Criminal Jurisdiction against the petitioner, imposing upon
him the penalty of life imprisonment, was good and valid, since it was
within the admitted power or competence of the belligerent occupant to
promulgate the law penalizing the crime of which petitioner was convicted.
(3) The last question is the legal effect of the reoccupation of the
Philippines and restoration of the Commonwealth Government; that is
whether or not, by the principle of postliminy, the punitive sentence which
petitioner is now serving fell through or ceased to be valid from that time.
The crimes penalized by Act No. 65 as well as the crimes against

national security and the law of nations, to wit: treason, espionage, inciting
war, violation of neutrality, correspondence with hostile country, flight to
enemy's country, piracy; and the crimes against public order, such as
rebellion, sedition and disloyalty, illegal possession of firearms and other,
penalized by Ordinance No. 7 and placed under jurisdiction of the Court of
Special and Exclusive Criminal Jurisdiction are all of a political
complexion, because the acts constituting those offenses were punished,
as are all political offenses, for public rather than private reasons, and were
acts in aid or favor of the enemy and against the welfare, safety and
security of the belligerent occupant. While it is true that these offenses,
when committed against the Commonwealth or United States Government,
are defined and also penalized by the territorial law Revised Penal Code,
they became inapplicable as crimes against the occupier upon the
occupation of the Islands by the Japanese forces. And they had to be taken
out of the territorial law and made punishable by said Ordinance No. 7, for
they were not penalized before under the Revised Penal Code when
committed against the belligerent occupant or the government established
by him in these Island. They are also considered by some writers as war
In order to resolve this last question, it is not necessary to enter into an

elaborate discussion on the matter. It is sufficient to quote the opinion on
the subject of several international jurists and our recent decision in the
case of Co Kim Cham vs. Valdez Tan Keh and Dizon, supra.
Hall, commenting on the effect of the principle of postliminy upon
sentences of the tribunals continued or created by the belligerent
occupant, opines "that judicial acts done under this control, when they are
not of a political complexion, administrative acts so done, to the extent
that they take effect during the continuance of his control, and the various
acts done during the same time by private persons under the sanction of
municipal law, remain good. . . . Political acts on the other hand fall
through as of course, whether they introduce any positive change into the
organization of the country, or whether they only suspend the working of
that already in existence. The execution also of punitive sentences ceases
as of course when they have had reference to acts not criminal by the
municipal law of the state, such for example as acts directed against the
163
security or control of the invader." (Hall's International Law, seventh

edition, p. 518.)
It may not be amiss to say in this connection that it is not necessary and
proper to invoke the proclamation of General Douglas MacArthur declaring
null and void all laws, among them Act No. 65, of the so-called Republic of
the Philippines under which petitioner was convicted, in order to give
retroactive effect to the nullification of said penal act and invalidate
sentence rendered against petitioner under said law, a sentence which,
before the proclamation, had already become null and of no effect.
Westlake, speaking of the duration of the validity of punitive sentences for

offenses such as the one in question, which is within the admitted power or
competence of the belligerent occupant to punish, says that: "To the extent
to which the legal power of the occupant is admitted he can make law for
the duration of his occupation. Like any other legislator he is morally
subject to the duty of giving sufficient notice of his enactments or
regulations, not indeed so as to be debarred from carrying out his will
without notice, when required by military necessity and so far as practically
carrying out his will can be distinguished from punishment, but always
remembering that to punish for breach of a regulation a person who was
justifiably ignorant of it would be outrageous. But the law made by the
occupant within his admitted power, whether morally justifiable or not, will
bind any member of the occupied population as against any other member
of it, and will bind as between them all and their national government, so
far as it produces an effect during the occupation. When the occupation
comes to an end the authority of the national government is restored,
either by the progress of operations during the war or by the conclusion of
a peace, no redress can be had for what has been actually carried out but
nothing further can follow from the occupant's legislation. A prisoner
detained under it must be released, and no civil right conferred by it can be
further enforced. The enemy's law depends on him for enforcement as well
as for enactment. The invaded state is not subject to the indignity of being
obliged to execute his commands. (Westlake, International Law, Part II,
War, pp. 97, 98.)
We therefore hold that the punitive sentence under consideration, although

good and valid during the military occupation of the Philippines by the
Japanese forces, ceased to be good and valid ipso facto upon the
reoccupation of these Island and the restoration therein of the
Commonwealth Government.
In view of all the foregoing, the writ of habeas corpus prayed for is hereby
granted and it is ordered that the petitioner be released forthwith, without
pronouncement as to costs. So ordered.
Jaranilla,
Pablo
and
Moran, C.J., concurs in the result.
Bengzon,
JJ., concur.

SUPREME COURT
Manila
EN BANC
And Wheaton, who, as above stated, considers as war crimes such offenses
as those penalized in Ordinance No. 7 and Act No. 65, says: "In general, the
cast of the occupant possess legal validity, and under international law
should not be abrogated by the subsequent government. But this rule does
not necessarily apply to acts that exceed the occupant's power
(e.g., alienation of the domains of the State or the sovereign), to sentences
for 'war treason' and'war crimes,' to acts of a political character, and to
those that beyond the period of occupation. When occupation ceases, no
reparation is legally due for what has already been carried out."
(Wheaton's International Law, supra, p. 245.)
G.R. No. L-6
November 29, 1945
ANICETO ALCANTARA, petitioner,

vs.
DIRECTOR OF PRISONS, respondent.
Buenaventura B. Martinez for petitioner.
Office of the Solicitor General Taada for respondent.
We have already held in our recent decision in the case of Co Kim Cham vs.
Valdez Tan Keh and Dizon, supra, that all judgments of political complexion
of the courts during the Japanese regime, ceased to be valid upon the
reoccupation of the islands by virtue of the principle or right of
postliminium. Applying that doctrine to the present case, the sentence
which convicted the petitioner of a crime of a political complexion must be
considered as having ceased to be valid ipso facto upon the reoccupation
or liberation of the Philippines by General Douglas MacArthur.
FERIA, J.:
This is a petition for the issuance of a writ of habeas corpus and for the
release of the petitioner on the ground that the latter is unlawfully
imprisoned and restrained of his liberty by the respondent Director of
Prison in the provincial jail at Vigan, Ilocos Sur.
Petitioner was convicted by the Court First Instance of Ilocos Sur (Criminal
case No. 23) of the crime of illegal discharge of firearms with less serious
164
physical injuries. Upon appeal, the Court of Appeals of Northern Luzon at

Baguio modified said sentence (CA- G.R. No. 790)and sentence the
petitioner to an indeterminate penalty of from four months four months
and twenty-one days of arresto mayor to three years, nine months and
three days of prison correccional. The sentence as modified became final
on September 12, 1944, and June 23, 1945, petitioner commenced serving
his sentence.
Obviously, the sentence which petitioner is now serving has no political

complexion. He was charged with and convicted of an offense punishable
under the municipal law of the Commonwealth, the Revised Penal Code.
Therefore, the sentence of the Court of First Instance of Ilocos Sur, as
modified by the Court of Appeals of Northern Luzon, is valid and
enforceable.
A punitive or penal sentence is said to of a political complexion when it
penalizes either a new act not defined in the municipal laws, or acts
already penalized by the latter as a crime against the legitimate
government, but taken out of the territorial law and penalized as a new
offenses committed against belligerent occupant, incident to a state of a
war and necessary for the control of the occupied territory and the
protection of the army of the occupier. They are acts penalized for public
rather than private reasons, acts which tend, directly or indirectly, to aid or
favor the enemy and are directed against the welfare, safety and security,
of the belligerent occupant. As example, the crimes against national
security , such as treason, espionage, etc., and against public order, such
as rebellion, sedition, etc., were crimes against the Commonwealth or
United States Government under the Revised Penal Code, which were
made crimes against the belligerent occupant.
Petitioner now questions the validity of the decision of the Court of Appeals
of Northern Luzon, on the sole ground that said court was only a creation of
the so-called Republic of the Philippines during the Japanese military
occupation of the Islands; that the Court of Appeals was not authorized by
Commonwealth Act No. 3 to hold sessions in Baguio, and that only the two
Justices constituted the majority which promulgated the decision in
question. The petitioner does not question the validity of said decision on
the strength of the Proclamation of General Douglas McArthur of October
23, 1944, which according to our decision in the case of Co Kim Cham vs.
Valdez Tan Keh and Dizon, G.R. No. L-5 (p. 113, ante), does not refer to
judicial processes.
In the said case of Co Kim Cham vs. Valdez Tan Keh and Dizon, this Court
ruled that the so-called Republic of the Philippines and the Philippine
Executive Commission established in the Philippines during the Japanese
regime were governments de facto organized by the belligerent occupant
by the judicial acts thereof were good and valid and remained good and
valid after the restoration of the Commonwealth Government, except those
a political complexion. In that the same case this Court held that the Court
of Appeals which was continued throughout the Japanese occupation, was
the same Court of Appeals existed prior to the Japanese occupation and
was lately abolished by Executive Order No. 37. The division of the Court of
Appeals into several District Court of Appeals, and the reduction of the
number of Justices sitting in each division, the regime of the so-called
Republic effected no substantial change in its nature and jurisdiction.
In view of the foregoing, the petitioner for the writ of habeas corpus is
denied.
Moran, C.J., Ozaeta, Paras, Jaranilla, Pablo and Bengzon, JJ., concur.
SUPREME COURT
Manila
EN BANC
Even assuming that the Court of Appeals of Northern Luzon was a new
court created by the belligerent occupant or the de facto governments
established by him, the judgments of such court, like those of the court
which were continued during the Japanese occupation, were good and valid
and remain good and valid, and therefore enforceable now after the
liberation or occupation of the Philippines, provided that such judgments
do not have a political complexion, as this court held in its decision in the
abovementioned case of Co Kim Cham vs. Valdez Tan Keh and Dizon supra,
in accordance with the authorities therein cited.
G.R. No. L-409
January 30, 1947
ANASTACIO LAUREL, petitioner,

vs.
ERIBERTO MISA, respondent.
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for
respondent.
RESOLUTION
165
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the
Court, acting on the petition for habeas corpusfiled by Anastacio
Laurel and based on a theory that a Filipino citizen who adhered to
the enemy giving the latter aid and comfort during the Japanese
occupation cannot be prosecuted for the crime of treason defined
and penalized by article 114 of the Revised Penal Code, for the
reason (1) that the sovereignty of the legitimate government in the
Philippines and, consequently, the correlative allegiance of Filipino
citizens thereto was then suspended; and (2) that there was a
change of sovereignty over these Islands upon the proclamation of
the Philippine Republic:
Oppenheim, 6th Lauterpacht ed., 1944, p. 482), recognized, by

necessary implication, in articles 23, 44, 45, and 52 of Hague
Regulation; and that, as a corollary of the conclusion that the
sovereignty itself is not suspended and subsists during the enemy
occupation, the allegiance of the inhabitants to their legitimate
government or sovereign subsists, and therefore there is no such
thing as suspended allegiance, the basic theory on which the whole
fabric of the petitioner's contention rests;
Considering that the conclusion that the sovereignty of the United
State was suspended in Castine, set forth in the decision in the
case of United States vs. Rice, 4 Wheaton, 246, 253, decided in
1819, and quoted in our decision in the cases of Co Kim Cham vs.
Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons,
supra, in connection with the question, not of sovereignty, but of
the existence of a government de factotherein and its power to
promulgate rules and laws in the occupied territory, must have
been based, either on the theory adopted subsequently in the
Hague Convention of 1907, that the military occupation of an
enemy territory does not transfer the sovereignty to the occupant;
that, in the first case, the word "sovereignty" used therein should
be construed to mean the exercise of the rights of sovereignty,
because as this remains vested in the legitimate government and
is not transferred to the occupier, it cannot be suspended without
putting it out of existence or divesting said government thereof;
and that in the second case, that is, if the said conclusion or
doctrine refers to the suspension of the sovereignty itself, it has
become obsolete after the adoption of the Hague Regulations in
1907, and therefore it can not be applied to the present case;
(1) Considering that a citizen or subject owes, not a qualified and

temporary, but an absolute and permanent allegiance, which
consists in the obligation of fidelity and obedience to his
government or sovereign; and that this absolute and permanent
allegiance should not be confused with the qualified and temporary
allegiance which a foreigner owes to the government or sovereign
of the territory wherein he resides, so long as he remains there, in
return for the protection he receives, and which consists in the
obedience to the laws of the government or sovereign.
(Carlisle vs. Unite States, 21 Law. ed., 429; Secretary of State
Webster Report to the President of the United States in the case of
Thraser, 6 Web. Works, 526);
Considering that the absolute and permanent allegiance of the
inhabitants of a territory occupied by the enemy of their legitimate
government or sovereign is not abrogated or severed by the
enemy occupation, because the sovereignty of the government or
sovereign de jure is not transferred thereby to the occupier, as we
have held in the cases of Co Kim Cham vs. Valdez Tan Keh and
Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons (75 Phil.,
285), and if it is not transferred to the occupant it must necessarily
remain vested in the legitimate government; that the sovereignty
vested in the titular government (which is the supreme power
which governs a body politic or society which constitute the state)
must be distinguished from the exercise of the rights inherent
thereto, and may be destroyed, or severed and transferred to
another, but it cannot be suspended because the existence of
sovereignty cannot be suspended without putting it out of
existence or divesting the possessor thereof at least during the socalled period of suspension; that what may be suspended is the
exercise of the rights of sovereignty with the control and
government of the territory occupied by the enemy passes
temporarily to the occupant; that the subsistence of the
sovereignty of the legitimate government in a territory occupied by
the military forces of the enemy during the war, "although the
former is in fact prevented from exercising the supremacy over
them" is one of the "rules of international law of our times"; (II
Considering that even adopting the words "temporarily allegiance,"

repudiated by Oppenheim and other publicists, as descriptive of
the relations borne by the inhabitants of the territory occupied by
the enemy toward the military government established over them,
such allegiance may, at most, be considered similar to the
temporary allegiance which a foreigner owes to the government or
sovereign of the territory wherein he resides in return for the
protection he receives as above described, and does not do away
with the absolute and permanent allegiance which the citizen
residing in a foreign country owes to his own government or
sovereign; that just as a citizen or subject of a government or
sovereign may be prosecuted for and convicted of treason
committed in a foreign country, in the same way an inhabitant of a
territory occupied by the military forces of the enemy may commit
treason against his own legitimate government or sovereign if he
adheres to the enemies of the latter by giving them aid and
comfort; and that if the allegiance of a citizen or subject to his
government or sovereign is nothing more than obedience to its
laws in return for the protection he receives, it would necessarily
166
follow that a citizen who resides in a foreign country or state would,

on one hand, ipso factoacquire the citizenship thereof since he has
enforce public order and regulate the social and commercial life, in
return for the protection he receives, and would, on the other hand,
lose his original citizenship, because he would not be bound to
obey most of the laws of his own government or sovereign, and
would not receive, while in a foreign country, the protection he is
entitled to in his own;
or limitations imposed by the Hague Regulations, the usages

established by civilized nations, the laws of humanity and the
requirements of public conscience (Peralta vs.Director of
Prisons, supra; 1940 United States Rules of Land Warfare 76, 77);
and that, consequently, all acts of the military occupant dictated
within these limitations are obligatory upon the inhabitants of the
territory, who are bound to obey them, and the laws of the
legitimate government which have not been adopted, as well and
those which, though continued in force, are in conflict with such
laws and orders of the occupier, shall be considered as suspended
or not in force and binding upon said inhabitants;
Considering that, as a corollary of the suspension of the exercise of

the rights of sovereignty by the legitimate government in the
territory occupied by the enemy military forces, because the
authority of the legitimate power to govern has passed into the
hands of the occupant (Article 43, Hague Regulations), the political
laws which prescribe the reciprocal rights, duties and obligation of
government and citizens, are suspended or in abeyance during
military occupation (Co Kim cham vs. Valdez Tan Keh and
dizon, supra), for the only reason that as they exclusively bear
relation to the ousted legitimate government, they are inoperative
or not applicable to the government established by the occupant;
that the crimes against national security, such as treason and
espionage; inciting to war, correspondence with hostile country,
flight to enemy's country, as well as those against public order,
such as rebellion, sedition, and disloyalty, illegal possession of
firearms, which are of political complexion because they bear
relation to, and are penalized by our Revised Penal Code as crimes
against the legitimate government, are also suspended or become
inapplicable as against the occupant, because they can not be
committed against the latter (Peralta vs. Director of Prisons, supra);
and that, while the offenses against public order to be preserved
by the legitimate government were inapplicable as offenses
against the invader for the reason above stated, unless adopted by
him, were also inoperative as against the ousted government for
the latter was not responsible for the preservation of the public
order in the occupied territory, yet article 114 of the said Revised
Penal Code, was applicable to treason committed against the
national security of the legitimate government, because the
inhabitants of the occupied territory were still bound by their
allegiance to the latter during the enemy occupation;
Considering that, since the preservation of the allegiance or the

obligation of fidelity and obedience of a citizen or subject to his
government or sovereign does not demand from him a positive
action, but only passive attitude or forbearance from adhering to
the enemy by giving the latter aid and comfort, the occupant has
no power, as a corollary of the preceding consideration, to repeal
or suspend the operation of the law of treason, essential for the
preservation of the allegiance owed by the inhabitants to their
legitimate government, or compel them to adhere and give aid and
comfort to him; because it is evident that such action is not
demanded by the exigencies of the military service or not
necessary for the control of the inhabitants and the safety and
protection of his army, and because it is tantamount to practically
transfer temporarily to the occupant their allegiance to the titular
government or sovereign; and that, therefore, if an inhabitant of
the occupied territory were compelled illegally by the military
occupant, through force, threat or intimidation, to give him aid and
comfort, the former may lawfully resist and die if necessary as a
hero, or submit thereto without becoming a traitor;
Considering that adoption of the petitioner's theory of suspended
allegiance would lead to disastrous consequences for small and
weak nations or states, and would be repugnant to the laws of
humanity and requirements of public conscience, for it would allow
invaders to legally recruit or enlist the Quisling inhabitants of the
occupied territory to fight against their own government without
the latter incurring the risk of being prosecuted for treason, and
even compel those who are not aid them in their military operation
against the resisting enemy forces in order to completely subdue
and conquer the whole nation, and thus deprive them all of their
own independence or sovereignty such theory would sanction
the action of invaders in forcing the people of a free and sovereign
country to be a party in the nefarious task of depriving themselves
of their own freedom and independence and repressing the
exercise by them of their own sovereignty; in other words, to
commit a political suicide;
Considering that, although the military occupant is enjoined to

respect or continue in force, unless absolutely prevented by the
circumstances, those laws that enforce public order and regulate
the social and commercial life of the country, he has, nevertheless,
all the powers of de facto government and may, at his pleasure,
either change the existing laws or make new ones when the
exigencies of the military service demand such action, that is,
when it is necessary for the occupier to do so for the control of the
country and the protection of his army, subject to the restrictions
167
(2) Considering that the crime of treason against the government

of the Philippines defined and penalized in article 114 of the Penal
Code, though originally intended to be a crime against said
government as then organized by authority of the sovereign people
of the United States, exercised through their authorized
representative, the Congress and the President of the United
States, was made, upon the establishment of the Commonwealth
Government in 1935, a crime against the Government of the
Philippines established by authority of the people of the
Philippines, in whom the sovereignty resides according to section
1, Article II, of the Constitution of the Philippines, by virtue of the
provision of section 2, Article XVI thereof, which provides that "All
laws of the Philippine Islands . . . shall remain operative, unless
inconsistent with this Constitution . . . and all references in such
laws to the Government or officials of the Philippine Islands, shall
be construed, in so far as applicable, to refer to the Government
and corresponding officials under this constitution;
the people of each State of the Union preserves its own

sovereignty although limited by that of the United States conferred
upon the latter by the States; that just as to reason may be
committed against the Federal as well as against the State
Government, in the same way treason may have been committed
during the Japanese occupation against the sovereignty of the
United States as well as against the sovereignty of the Philippine
Commonwealth; and that the change of our form of government
from Commonwealth to Republic does not affect the prosecution of
those charged with the crime of treason committed during the
Commonwealth, because it is an offense against the same
government and the same sovereign people, for Article XVIII of our
Constitution provides that "The government established by this
constitution shall be known as the Commonwealth of the
Philippines. Upon the final and complete withdrawal of the
sovereignty of the United States and the proclamation of Philippine
independence, the Commonwealth of the Philippines shall
thenceforth be known as the Republic of the Philippines";
Considering that the Commonwealth of the Philippines was a

sovereign government, though not absolute but subject to certain
limitations imposed in the Independence Act and incorporated as
Ordinance appended to our Constitution, was recognized not only
by the Legislative Department or Congress of the United States in
approving the Independence Law above quoted and the
Constitution of the Philippines, which contains the declaration that
"Sovereignty resides in the people and all government authority
emanates from them" (section 1, Article II), but also by the
Executive Department of the United States; that the late President
Roosevelt in one of his messages to Congress said, among others,
"As I stated on August 12, 1943, the United States in practice
regards the Philippines as having now the status as a government
of other independent nations in fact all the attributes of
complete and respected nationhood" (Congressional Record, Vol.
29, part 6, page 8173); and that it is a principle upheld by the
Supreme Court of the United States in many cases, among them in
the case of Jones vs. United States (137 U.S., 202; 34 Law. ed.,
691, 696) that the question of sovereignty is "a purely political
question, the determination of which by the legislative and
executive departments of any government conclusively binds the
judges, as well as all other officers, citizens and subjects of the
country.
This Court resolves, without prejudice to write later on a more

extended opinion, to deny the petitioner's petition, as it is hereby
denied, for the reasons above set forth and for others to be stated
in the said opinion, without prejudice to concurring opinion therein,
if any. Messrs. Justices Paras and Hontiveros dissent in a separate
opinion. Mr. justice Perfecto concurs in a separate opinion.

SUPREME COURT
Manila
EN BANC
G.R. No. L-18463
October 4, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GREGORIO PERFECTOR, defendant-appellant.
Alfonso E. Mendoza and the appellant in behalf of the latter.
Attorney-General Villa-Real for appellee.
Considering that section I (1) of the Ordinance appended to the

Constitution which provides that pending the final and complete
withdrawal of the sovereignty of the United States "All citizens of
the Philippines shall owe allegiance to the United States", was one
of the few limitations of the sovereignty of the Filipino people
retained by the United States, but these limitations do not away or
are not inconsistent with said sovereignty, in the same way that
MALCOLM, J.:
168
The important question is here squarely presented of whether article 256

of the Spanish Penal Code, punishing "Any person who, by . . . writing, shall
defame, abuse, or insult any Minister of the Crown or other person in
authority . . .," is still in force.
The Philippine Senate, in its session of September 9, 1920, adopted a

resolution authorizing its committee on elections and privileges to report
as to the action which should be taken with reference to the article
published in La Nacion. On September 15, 1920, the Senate adopted a
resolution authorizing the President of the Senate to indorse to the
Attorney-General, for his study and corresponding action, all the papers
referring to the case of the newspaper La Nacion and its editor, Mr.
Gregorio Perfecto. As a result, an information was filed in the municipal
court of the City of Manila by an assistant city fiscal, in which the editorial
in question was set out and in which it was alleged that the same
constituted a violation of article 256 of the Penal Code. The defendant
Gregorio Perfecto was found guilty in the municipal court and again in the
Court of First Instance of Manila.
About August 20, 1920, the Secretary of the Philippine Senate, Fernando M.
Guerrero, discovered that certain documents which constituted the records
of testimony given by witnesses in the investigation of oil companies, had
disappeared from his office. Shortly thereafter, the Philippine Senate,
having been called into special session by the Governor-General, the
Secretary for the Senate informed that body of the loss of the documents
and of the steps taken by him to discover the guilty party. The day
following the convening of the Senate, September 7, 1920, the
newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article
reading as follows:
During the course of the trial in the Court of First Instance, after the
prosecution had rested, the defense moved for the dismissal of the case.
On the subject of whether or not article 256 of the Penal Code, under which
the information was presented, is in force, the trial judge, the Honorable
George R. Harvey, said:
Half a month has elapsed since the discovery, for the first time, of
the scandalous robbery of records which were kept and preserved
in the iron safe of the Senate, yet up to this time there is not the
slightest indication that the author or authors of the crime will ever
be discovered.
This antiquated provision was doubtless incorporated into the Penal

Code of Spain for the protection of the Ministers of the Crown and
other representatives of the King against free speech and action by
Spanish subjects. A severe punishment was prescribed because it
was doubtless considered a much more serious offense to insult
the King's representative than to insult an ordinary individual. This
provision, with almost all the other articles of that Code, was
extended to the Philippine Islands when under the dominion of
Spain because the King's subject in the Philippines might defame,
abuse or insult the Ministers of the Crown or other representatives
of His Majesty. We now have no Ministers of the Crown or other
persons in authority in the Philippines representing the King of
Spain, and said provision, with other articles of the Penal Code, had
apparently passed into "innocuous desuetude," but the Supreme
Corut of the Philippine Islands has, by a majority decision, held that
said article 256 is the law of the land to-day. . . .
To find them, it would not, perhaps, be necessary to go out of the

Sente itself, and the persons in charge of the investigation of the
case would not have to display great skill in order to succeed in
their undertaking, unless they should encounter the insuperable
obstacle of offical concealment.
In that case, every investigation to be made would be but a mere
comedy and nothing more.
After all, the perpetration of the robbery, especially under the
circumstances that have surrounded it, does not surprise us at all.
The execution of the crime was but the natural effect of the
environment of the place in which it was committed.
The Helbig case is a precedent which, by the rule of stare decisis,

is binding upon this court until otherwise determined by proper
authority.
How many of the present Senators can say without remorse in their
conscience and with serenity of mind, that they do not owe their
victory to electoral robbery? How may?
In the decision rendered by the same judge, he concluded with the

following language:
The author or authors of the robbery of the records from the said
iron safe of the Senate have, perhaps, but followed the example of
certain Senators who secured their election through fraud and
robbery.
In the United States such publications are usually not punishable as

criminal offense, and little importance is attached to them,
because they are generally the result of political controversy and
are usually regarded as more or less colored or exaggerated.
169
Attacks of this character upon a legislative body are not

punishable, under the Libel Law. Although such publications are
reprehensible, yet this court feels some aversion to the application
of the provision of law under which this case was filed. Our Penal
Code has come to us from the Spanish regime. Article 256 of that
Code prescribes punishment for persons who use insulting
language about Ministers of the Crown or other "authority." The
King of Spain doubtless left the need of such protection to his
ministers and others in authority in the Philippines as well as in
Spain. Hence, the article referred to was made applicable here.
Notwithstanding the change of sovereignty, our Supreme Court, in
a majority decision, has held that this provision is still in force, and
that one who made an insulting remark about the President of the
United States was punishable under it. (U.S. vs. Helbig, supra.) If it
applicable in that case, it would appear to be applicable in this
case. Hence, said article 256 must be enforced, without fear or
favor, until it shall be repealed or superseded by other legislation,
or until the Supreme Court shall otherwise determine.
There may perchance exist some doubt as to the authority of the decision
in the Helbig case, in view of the circumstances above described. This
much, however, is certain: The facts of the Helbig case and the case before
us, which we may term the Perfecto case, are different, for in the first case
there was an oral defamation, while in the second there is a written
defamation. Not only this, but a new point which, under the facts, could not
have been considered in the Helbig case, is, in the Perfecto case, urged
upon the court. And, finally, as is apparent to all, the appellate court is not
restrained, as was the trial court, by strict adherence to a former decision.
We much prefer to resolve the question before us unhindered by references
to the Helbig decision.
This is one of those cases on which a variety of opinions all leading to the
same result can be had. A majority of the court are of the opinion that the
Philippine Libel Law, Act No. 277, has had the effect of repealing so much
of article 256 of the Penal Code as relates to written defamation, abuse, or
insult, and that under the information and the facts, the defendant is
neither guilty of a violation of article 256 of the Penal Code, nor of the Libel
Law. The view of the Chief Justice is that the accused should be acquitted
for the reason that the facts alleged in the information do not constitute a
violation of article 156 of the Penal Code. Three members of the court
believe that article 256 was abrogated completely by the change from
Spanish to American sovereignty over the Philippines and is inconsistent
with democratic principles of government.
In view of the foregoing considerations, the court finds the

defendant guilty as charged in the information and under article
256 of their Penal Code sentences him to suffer two months and
one day of arresto mayor and the accessory penalties prescribed
by law, and to pay the costs of both instances.
The fifteen errors assigned by the defendant and appellant, reenforced by
an extensive brief, and eloquent oral argument made in his own behalf and
by his learned counsel, all reduce themselves to the pertinent and decisive
question which was announced in the beginning of this decision.
Without prejudice to the right of any member of the court to explain his
position, we will discuss the two main points just mentioned.
1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of
the Spanish Penal Code. The Libel Law, Act No. 277, was
enacted by the Philippine Commission shortly after organization of
this legislative body. Section 1 defines libel as a "malicious
defamation, expressed either in writing, printing, or by signs or
pictures, or the like, or public theatrical exhibitions, tending to
blacken the memory of one who is dead or to impeach the honesty,
virtue, or reputation, or publish the alleged or natural deffects of
one who is alive, and thereby expose him to public hatred,
contempt or ridicule." Section 13 provides that "All laws and parts
of laws now in force, so far as the same may be in conflict
herewith, are hereby repealed. . . ."
It will be noted in the first place that the trial judge considered himself
bound to follow the rule announced in the case of United States vs. Helbig
(R. G. No. 14705, 1 not published). In that case, the accused was charged
with having said, "To hell with the President and his proclamations, or
words to that effect," in violation of article 256 of the Penal Code. He was
found guilty in a judgment rendered by the Court of First Instance of Manila
and again on appeal to the Supreme Court, with the writer of the instant
decision dissenting on two principal grounds: (1) That the accused was
deprived of the constitutional right of cross-examination, and (2) that
article 256 of the Spanish Penal Code is no longer in force. Subsequently,
on a motion of reconsideration, the court, being of the opinion that the
Court of First Instance had committed a prejudicial error in depriving the
accused of his right to cross-examine a principal witness, set aside the
judgment affirming the judgment appealed from and ordered the return of
the record to the court of origin for the celebration of a new trial. Whether
such a trial was actually had, is not known, but at least, the record in the
Helbig case has never again been elevated to this court.
That parts of laws in force in 1901 when the Libel Law took effect, were in
conflict therewith, and that the Libel Law abrogated certain portion of the
Spanish Penal Code, cannot be gainsaid. Title X of Book II of the Penal
Code, covering the subjects of calumny and insults, must have been
particularly affected by the Libel Law. Indeed, in the early case of Pardo de
Tavera vs. Garcia Valdez ([1902], 1. Phil., 468), the Supreme Court spoke of
the Libel Law as "reforming the preexisting Spanish law on the subject
170
of calumnia and injuria." Recently, specific attention was given to the effect
of the Libel Law on the provisions of the Penal Code, dealing with calumny
and insults, and it was found that those provisions of the Penal Code on the
subject of calumny and insults in which the elements of writing an publicity
entered, were abrogated by the Libel Law. (People vs. Castro [1922], p.
842, ante.)
government. This view was indirectly favored by the trial judge,

and, as before stated, is the opinion of three members of this court.
Article 256 is found in Chapter V of title III of Book II of the Spanish Penal
Code. Title I of Book II punishes the crimes of treason, crimes that
endanger the peace or independence of the state, crimes against
international law, and the crime of piracy. Title II of the same book
punishes the crimes of lese majeste, crimes against the Cortes and its
members and against the council of ministers, crimes against the form of
government, and crimes committed on the occasion of the exercise of
rights guaranteed by the fundamental laws of the state, including crime
against religion and worship. Title III of the same Book, in which article 256
is found, punishes the crimes of rebellion, sedition, assaults upon persons
in authority, and their agents, and contempts, insults, injurias, and threats
against persons in authority, and insults, injurias, and threats against their
agents and other public officers, the last being the title to Chapter V. The
first two articles in Chapter V define and punish the offense of contempt
committed by any one who shall be word or deed defame, abuse, insult, or
threathen a minister of the crown, or any person in authority. The with an
article condemning challenges to fight duels intervening, comes article
256, now being weighed in the balance. It reads as follows: "Any person
who, by word, deed, or writing, shall defame, abuse, or insult any Minister
of the Crown or other person in authority, while engaged in the
performance of official duties, or by reason of such performance, provided
that the offensive minister or person, or the offensive writing be not
addressed to him, shall suffer the penalty of arresto mayor," that is, the
defamation, abuse, or insult of anyMinister of the Crown of the Monarchy
of Spain (for there could not be a Minister of the Crown in the United States
of America), or other person in authority in the Monarchy of Spain.
The Libel Law must have had the same result on other provisions of the
Penal Code, as for instance article 256.
The facts here are that the editor of a newspaper published an article,
naturally in writing, which may have had the tendency to impeach the
honesty, virtue, or reputation of members of the Philippine Senate, thereby
possibly exposing them to public hatred, contempt, or ridicule, which is
exactly libel, as defined by the Libel Law. Sir J. F. Stephen is authority for
the statement that a libel is indictable when defaming a "body of persons
definite and small enough for individual members to be recognized as
such, in or by means of anything capable of being a libel." (Digest of
Criminal Law, art. 267.) But in the United States, while it may be proper to
prosecute criminally the author of a libel charging a legislator with
corruption, criticisms, no matter how severe, on a legislature, are within
the range of the liberty of the press, unless the intention and effect be
seditious. (3 Wharton's Criminal Law, p. 2131.) With these facts and legal
principles in mind, recall that article 256 begins: Any person who,
by . . . writing, shall defame, abuse, or insult any Minister of the Crown or
other person in authority," etc.
The Libel Law is a complete and comprehensive law on the subject of libel.
The well-known rule of statutory construction is, that where the later
statute clearly covers the old subject-matter of antecedent acts, and it
plainly appears to have been the purpose of the legislature to give
expression in it to the whole law on the subject, previous laws are held to
be repealed by necessary implication. (1 Lewis' Sutherland Statutory
Construction, p. 465.) For identical reasons, it is evident that Act No. 277
had the effect so much of this article as punishes defamation, abuse, or
insults by writing.
It cannot admit of doubt that all those provisions of the Spanish Penal Code
having to do with such subjects as treason, lese majeste, religion and
worship, rebellion, sedition, and contempts of ministers of the crown, are
not longer in force. Our present task, therefore, is a determination of
whether article 256 has met the same fate, or, more specifically stated,
whether it is in the nature of a municipal law or political law, and is
consistent with the Constitution and laws of the United States and the
characteristics and institutions of the American Government.
Act No. 292 of the Philippine Commission, the Treason and Sedition Law,
may also have affected article 256, but as to this point, it is not necessary
to make a pronouncement.
It is a general principle of the public law that on acquisition of territory the

previous political relations of the ceded region are totally abrogated.
"Political" is here used to denominate the laws regulating the relations
sustained by the inhabitants to the sovereign. (American Insurance
Co. vs. Canter [1828], 1 Pet., 511; Chicago, Rock Island and Pacific Railway
Co. vs. McGlinn [1885], 114 U.S., 542; Roa vs. Collector of Customs [1912],
23 Phil., 315.) Mr. Justice Field of the United States Supreme Court stated
the obvious when in the course of his opinion in the case of Chicago, Rock
Island and Pacific Railway Co. vs. McGlinn, supra, he said: "As a matter of
course, all laws, ordinances and regulations in conflict with the political
2. Effect of the change from Spanish to Amercian sevoreignty over

the Philippine son article 256 of the Spanish Penal Code.
Appellant's main proposition in the lower court and again
energetically pressed in the appellate court was that article 256 of
the Spanish Penal Code is not now in force because abrogated by
the change from Spanish to American sovereignty over the
Philippines and because inconsistent with democratic principles of
171
character, institutions and Constitution of the new government are at once

displaced. Thus, upon a cession of political jurisdiction and legislative
power and the latter is involved in the former to the United
States, the laws of the country in support of an established religion
or abridging the freedom of the press, or authorizing cruel and unusual
punishments, and he like, would at once cease to be of obligatory
force without any declaration to that effect." To quote again from the
United States Supreme Court: "It cannot be admitted that the King of Spain
could, by treaty or otherwise, impart to the United States any of his royal
prerogatives; and much less can it be admitted that they have capacity to
receive or power to exercise them. Every nation acquiring territory, by
treaty or otherwise, must hold it subject to the Constitution and laws of its
own government, and not according to those of the government ceding it."
(Pollard vs. Hagan [1845], 3 Hos., 210.)
to conform to their customs, their habits, and even their prejudices,

to the fullest extent consistent with the accomplishment of the
indispensable requisites of just and effective government. At the
same time the Commission should bear in mind, and the people of
the Islands should be made plainly to understand, that there are
certain great principles of government which have been made the
basis of our governmental system, which we deem essential to the
rule of law and the maintenance of individual freedom, and of
which they have, unfortunately, been denied the experience
possessed by us; that there are also certain practical rules of
government which we have found to be essential to the
preservation of these great principles of liberty and law, and that
these principles and these rules of government must be
established and maintained in their islands for the sake of their
liberty and happiness, however much they may conflict with the
customs or laws of procedure with which they are familiar. It is
evident that the most enligthened thought of the Philippine Islands
fully appreciates the importance of these principles and rules, and
they will inevitably within a short time command universal assent.
On American occupation of the Philippines, by instructions of the President

to the Military Commander dated May 28, 1898, and by proclamation of the
latter, the municipal laws of the conquered territory affecting private rights
of person and property and providing for the punishment of crime were
nominally continued in force in so far as they were compatible with the
new order of things. But President McKinley, in his instructions to General
Merritt, was careful to say: "The first effect of the military occupation of the
enemy's territory is the severance of the former political relation of the
inhabitants and the establishment of a new political power." From that day
to this, the ordinarily it has been taken for granted that the provisions
under consideration were still effective. To paraphrase the language of the
United States Supreme Court in Weems vs. United States ([1910], 217 U.
S., 349), there was not and could not be, except as precise questions were
presented, a careful consideration of the codal provisions and a
determination of the extent to which they accorded with or were repugnant
to the "'great principles of liberty and law' which had been 'made the basis
of our governmental system.' " But when the question has been squarely
raised, the appellate court has been forced on occasion to hold certain
portions of the Spanish codes repugnant t democratic institutions and
American constitutional principles. (U.S. vs. Sweet [1901], 1 Phil., 18;
U.S. vs. Balcorta [1913], 25 Phil., 273; U.S. vs. Balcorta [1913], 25 Phil.,
533; Weems vs. U.S., supra.)
The courts have naturally taken the same view. Mr. Justice Elliott, speaking
for our Supreme Court, in the case of United States vs. Bull ([1910], 15
Phil., 7), said: "The President and Congress framed the government on the
model with which American are familiar, and which has proven best
adapted for the advancement of the public interests and the protection of
individual rights and privileges."
Therefore, it has come with somewhat of a shock to hear the statement
made that the happiness, peace, and prosperity of the people of the
Philippine Islands and their customs, habits, and prejudices, to follow the
language of President McKinley, demand obeisance to authority, and royal
protection for that authority.
According to our view, article 256 of the Spanish Penal Code was enacted
by the Government of Spain to protect Spanish officials who were the
representatives of the King. With the change of sovereignty, a new
government, and a new theory of government, as set up in the Philippines.
It was in no sense a continuation of the old, although merely for
convenience certain of the existing institutions and laws were continued.
The demands which the new government made, and makes, on the
individual citizen are likewise different. No longer is there a Minister of the
Crown or a person in authority of such exalted position that the citizen
must speak of him only with bated breath. "In the eye of our Constitution
and laws, every man is a sovereign, a ruler and a freeman, and has equal
rights with every other man. We have no rank or station, except that of
respectability and intelligence as opposed to indecency and ignorance, and
the door to this rank stands open to every man to freely enter and abide
therein, if he is qualified, and whether he is qualified or not depends upon
the life and character and attainments and conduct of each person for
The nature of the government which has been set up in the Philippines
under American sovereignty was outlined by President McKinley in that
Magna Charta of Philippine liberty, his instructions to the Commission, of
April 7, 1900. In part, the President said:
In all the forms of government and administrative provisions which
they are authorized to prescribe, the Commission should bear in
mind that he government which they are establishing is designed
not for our satisfaction or for the expression of our theoretical
views, but for the happiness, peace, and prosperity of the people of
the Philippine Islands, and the measures adopted should be made
172
himself. Every man may lawfully do what he will, so long as it is not malum
in se or malum prohibitum or does not infringe upon the qually sacred
rights of others." (State vs. Shepherd [1903], 177 Mo., 205; 99 A. S. R.,
624.)
does it place around the individual who happens to occupy an official

position by mandate of the people any official halo, which calls for drastic
punishment for contemptuous remarks.
The crime of lese majeste disappeared in the Philippines with the
ratification of the Treaty of Paris. Ministers of the Crown have no place
under the American flag.
It is true that in England, from which so many of the laws and institutions
of the United States are derived, there were once statutes of scandalum
magnatum, under which words which would not be actionable if spoken of
an ordinary subject were made actionable if spoken of a peer of the realm
or of any of the great officers of the Crown, without proof of any special
damage. The Crown of England, unfortunately, took a view less tolerant
that that of other sovereigns, as for instance, the Emperors Augustus,
Caesar, and Tiberius. These English statutes have, however, long since,
become obsolete, while in the United States, the offense of scandalum
magnatum is not known. In the early days of the American Republic, a
sedition law was enacted, making it an offense to libel the Government,
the Congress, or the President of the United States, but the law met with so
much popular disapproval, that it was soon repealed. "In this country no
distinction as to persons is recognized, and in practice a person holding a
high office is regarded as a target at whom any person may let fly his
poisonous words. High official position, instead of affording immunity from
slanderous and libelous charges, seems rather to be regarded as making
his character free plunder for any one who desires to create a senation by
attacking it." (Newell, Slander and Libel, 3d ed., p. 245; Sillars vs. Collier
[1890], 151 Mass., 50; 6 L.R.A., 680.)
To summarize, the result is, that all the members of the court are of the
opinion, although for different reasons, that the judgment should be
reversed and the defendant and appellant acquitted, with costs de officio.
So ordered.
Ostrand and Johns, JJ., concur.

SUPREME COURT
Manila
Article 256 of the Penal Code is contrary to the genius and fundamental
principles of the American character and system of government. The gulf
which separates this article from the spirit which inspires all penal
legislation of American origin, is as wide as that which separates a
monarchy from a democratic Republic like that of the United States. This
article was crowded out by implication as soon as the United States
established its authority in the Philippine Islands. Penalties out of all
proportion to the gravity of the offense, grounded in a distorted
monarchical conception of the nature of political authority, as opposed to
the American conception of the protection of the interests of the public,
have been obliterated by the present system of government in the
Islands. 1awph!l.net
EN BANC
A.M. No. 133-J May 31, 1982
BERNARDITA R. MACARIOLA, complainant,
vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First
Instance of Leyte, respondent.
From an entirely different point of view, it must be noted that this article
punishes contempts against executive officials, although its terms are
broad enough to cover the entire official class. Punishment for contempt of
non-judicial officers has no place in a government based upon American
principles. Our official class is not, as in monarchies, an agent of some
authority greater than the people but it is an agent and servant of the
people themselves. These officials are only entitled to respect and
obedience when they are acting within the scope of their authority and
jurisdiction. The American system of government is calculated to enforce
respect and obedience where such respect and obedience is due, but never
MAKASIAR, J:
In a verified complaint dated August 6, 1968 Bernardita R. Macariola
charged respondent Judge Elias B. Asuncion of the Court of First Instance of
Leyte, now Associate Justice of the Court of Appeals, with "acts
unbecoming a judge."
173
The factual setting of the case is stated in the report dated May 27, 1971
of then Associate Justice Cecilia Muoz Palma of the Court of Appeals now
retired Associate Justice of the Supreme Court, to whom this case was
referred on October 28, 1968 for investigation, thus:
Nos. 4474, 4475, 4892, 5265, 4803, 4581,

4506 and 1/4 of Lot 1145 as belonging to
the conjugal partnership of the spouses
Francisco Reyes Diaz and Felisa Espiras; (4)
Declaring Lot No. 2304 and 1/4 of Lot No.
3416 as belonging to the spouses Francisco
Reyes Diaz and Irene Ondez in common
partnership; (5) Declaring that 1/2 of Lot
No. 1184 as belonging exclusively to the
deceased Francisco Reyes Diaz; (6)
Declaring the defendant Bernardita R.
Macariola, being the only legal and forced
heir of her mother Felisa Espiras, as the
exclusive owner of one-half of each of Lots
Nos. 4474, 4475, 4892, 5265, 4803, 4581,
4506; and the remaining one-half (1/2) of
each of said Lots Nos. 4474, 4475, 4892,
5265, 4803, 4581, 4506 and one-half (1/2)
of one-fourth (1/4) of Lot No. 1154 as
belonging to the estate of Francisco Reyes
Diaz; (7) Declaring Irene Ondez to be the
exclusive owner of one-half (1/2) of Lot No.
2304 and one-half (1/2) of one-fourth (1/4)
of Lot No. 3416; the remaining one-half
(1/2) of Lot 2304 and the remaining onehalf (1/2) of one-fourth (1/4) of Lot No.
3416 as belonging to the estate of
Francisco Reyes Diaz; (8) Directing the
division or partition of the estate of
Francisco Reyes Diaz in such a manner as
to give or grant to Irene Ondez, as
surviving widow of Francisco Reyes Diaz, a
hereditary share of. one-twelfth (1/12) of
the whole estate of Francisco Reyes Diaz
(Art. 996 in relation to Art. 892, par 2, New
Civil Code), and the remaining portion of
the estate to be divided among the
plaintiffs Sinforosa R. Bales, Luz R.
Bakunawa,
Anacorita
Reyes,
Ruperto
Reyes, Adela Reyes, Priscilla Reyes and
defendant Bernardita R. Macariola, in such
a way that the extent of the total share of
plaintiff Sinforosa R. Bales in the hereditary
estate shall not exceed the equivalent of
two-fifth (2/5) of the total share of any or
each of the other plaintiffs and the
defendant (Art. 983, New Civil Code), each
of the latter to receive equal shares from
the hereditary estate, (Ramirez vs.
Bautista, 14 Phil. 528; Diancin vs. Bishop of
Civil Case No. 3010 of the Court of First Instance of Leyte

was a complaint for partition filed by Sinforosa R. Bales,
Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes, and Priscilla Reyes, plaintiffs, against Bernardita R.
Macariola, defendant, concerning the properties left by the
deceased Francisco Reyes, the common father of the
plaintiff and defendant.
In her defenses to the complaint for partition, Mrs.
Macariola alleged among other things that; a) plaintiff
Sinforosa R. Bales was not a daughter of the deceased
Francisco Reyes; b) the only legal heirs of the deceased
were defendant Macariola, she being the only offspring of
the first marriage of Francisco Reyes with Felisa Espiras,
and the remaining plaintiffs who were the children of the
deceased by his second marriage with Irene Ondez; c) the
properties left by the deceased were all the conjugal
properties of the latter and his first wife, Felisa Espiras, and
no properties were acquired by the deceased during his
second marriage; d) if there was any partition to be made,
those conjugal properties should first be partitioned into
two parts, and one part is to be adjudicated solely to
defendant it being the share of the latter's deceased
mother, Felisa Espiras, and the other half which is the
share of the deceased Francisco Reyes was to be divided
equally among his children by his two marriages.
On June 8, 1963, a decision was rendered by respondent
Judge Asuncion in Civil Case 3010, the dispositive portion
of which reads:
IN
VIEW
OF
THE
FOREGOING
CONSIDERATIONS, the Court, upon a
preponderance of evidence, finds and so
holds, and hereby renders judgment (1)
Declaring the plaintiffs Luz R. Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela
Reyes and Priscilla Reyes as the only
children legitimated by the subsequent
marriage of Francisco Reyes Diaz to Irene
Ondez; (2) Declaring the plaintiff Sinforosa
R. Bales to have been an illegitimate child
of Francisco Reyes Diaz; (3) Declaring Lots
174
Jaro, O.G. [3rd Ed.] p. 33); (9) Directing the

parties, within thirty days after this
judgment shall have become final to
submit to this court, for approval a project
of partition of the hereditary estate in the
proportion above indicated, and in such
manner as the parties may, by agreement,
deemed convenient and equitable to them
taking into consideration the location, kind,
quality, nature and value of the properties
involved; (10) Directing the plaintiff
Sinforosa
R.
Bales
and
defendant
Bernardita R. Macariola to pay the costs of
this suit, in the proportion of one-third (1/3)
by the first named and two-thirds (2/3) by
the second named; and (I 1) Dismissing all
other claims of the parties [pp 27-29 of
Exh. C].
4. A portion of Lot No. 3416 consisting of

1,834.55 square meters along the western
part of the lot shall likewise be awarded to
Sinforosa Reyes-Bales;
5. Lots Nos. 4474 and 4475 shall be divided
equally among Luz Reyes Bakunawa,
Reyes and Priscilla Reyes in equal shares;
6. Lot No. 1184 and the remaining portion
of Lot No. 3416 after taking the portions
awarded under item (2) and (4) above shall
be awarded to Luz Reyes Bakunawa,
Reyes and Priscilla Reyes in equal shares,
provided, however that the remaining
portion of Lot No. 3416 shall belong
exclusively to Priscilla Reyes.
The decision in civil case 3010 became final for lack of an

appeal, and on October 16, 1963, a project of partition was
submitted to Judge Asuncion which is marked Exh. A.
Notwithstanding the fact that the project of partition was
not signed by the parties themselves but only by the
respective counsel of plaintiffs and defendant, Judge
Asuncion approved it in his Order dated October 23, 1963,
which for convenience is quoted hereunder in full:
WHEREFORE, it is respectfully prayed that

the Project of Partition indicated above
which is made in accordance with the
decision of the Honorable Court be
approved.
Tacloban City, October 16, 1963.
The parties, through their respective

counsels, presented to this Court for
approval the following project of partition:
(SGD) BONIFACIO RAMO

Defendant Tacloban City
COMES NOW, the plaintiffs and the

defendant in the above-entitled case, to
this Honorable Court respectfully submit
the following Project of Partition:
Atty.
for
the
(SGD) ZOTICO A. TOLETE Atty. for the

Plaintiff Tacloban City
While the Court thought it more desirable
for all the parties to have signed this
Project of Partition, nevertheless, upon
assurance of both counsels of the
respective parties to this Court that the
Project of Partition, as above- quoted, had
been made after a conference and
agreement of the plaintiffs and the
defendant approving the above Project of
Partition, and that both lawyers had
represented to the Court that they are
given full authority to sign by themselves
the Project of Partition, the Court,
l. The whole of Lots Nos. 1154, 2304 and

4506 shall belong exclusively to Bernardita
Reyes Macariola;
2. A portion of Lot No. 3416 consisting of
2,373.49 square meters along the eastern
part of the lot shall be awarded likewise to
Bernardita R. Macariola;
3. Lots Nos. 4803, 4892 and 5265 shall be
awarded to Sinforosa Reyes Bales;
175
therefore, finding the above-quoted Project

of Partition to be in accordance with law,
hereby approves the same. The parties,
therefore, are directed to execute such
papers, documents or instrument sufficient
in form and substance for the vesting of
the rights, interests and participations
which were adjudicated to the respective
parties, as outlined in the Project of
Partition and the delivery of the respective
properties adjudicated to each one in view
of said Project of Partition, and to perform
such other acts as are legal and necessary
to effectuate the said Project of Partition.
(Exh. 2) who was issued transfer certificate of title No.

2338 of the Register of Deeds of the city of Tacloban (Exh.
12).
On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a
portion of Lot 1184-E with an area of around 1,306 sq.
meters to Judge Asuncion and his wife, Victoria S. Asuncion
(Exh. 11), which particular portion was declared by the
latter for taxation purposes (Exh. F).
On August 31, 1966, spouses Asuncion and spouses
Galapon conveyed their respective shares and interest in
Lot 1184-E to "The Traders Manufacturing and Fishing
Industries Inc." (Exit 15 & 16). At the time of said sale the
stockholders of the corporation were Dominador Arigpa
Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge
Asuncion, and the latter's wife, Victoria S. Asuncion, with
Judge Asuncion as the President and Mrs. Asuncion as the
secretary (Exhs. E-4 to E-7). The Articles of Incorporation of
"The Traders Manufacturing and Fishing Industries, Inc."
which we shall henceforth refer to as "TRADERS" were
registered with the Securities and Exchange Commission
only on January 9, 1967 (Exh. E) [pp. 378-385, rec.].
SO ORDERED.
Given in Tacloban City, this 23rd day of
October, 1963.
(SGD) ELIAS B. ASUNCION Judge
EXH. B.
Complainant Bernardita R. Macariola filed on August 9, 1968 the instant

complaint dated August 6, 1968 alleging four causes of action, to wit: [1]
that respondent Judge Asuncion violated Article 1491, paragraph 5, of the
New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which
was one of those properties involved in Civil Case No. 3010 decided by
him; [2] that he likewise violated Article 14, paragraphs I and 5 of the Code
of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil
Service Rules, and Canon 25 of the Canons of Judicial Ethics, by associating
himself with the Traders Manufacturing and Fishing Industries, Inc., as a
stockholder and a ranking officer while he was a judge of the Court of First
Instance of Leyte; [3] that respondent was guilty of coddling an impostor
and acted in disregard of judicial decorum by closely fraternizing with a
certain Dominador Arigpa Tan who openly and publicly advertised himself
as a practising attorney when in truth and in fact his name does not appear
in the Rolls of Attorneys and is not a member of the Philippine Bar; and [4]
that there was a culpable defiance of the law and utter disregard for ethics
by respondent Judge (pp. 1-7, rec.).
The above Order of October 23, 1963, was amended on

November 11, 1963, only for the purpose of giving
authority to the Register of Deeds of the Province of Leyte
to issue the corresponding transfer certificates of title to
the respective adjudicatees in conformity with the project
of partition (see Exh. U).
One of the properties mentioned in the project of partition
was Lot 1184 or rather one-half thereof with an area of
15,162.5 sq. meters. This lot, which according to the
decision was the exclusive property of the deceased
Francisco Reyes, was adjudicated in said project of partition
to the plaintiffs Luz, Anacorita Ruperto, Adela, and Priscilla
all surnamed Reyes in equal shares, and when the project
of partition was approved by the trial court the
adjudicatees caused Lot 1184 to be subdivided into five
lots denominated as Lot 1184-A to 1184-E inclusive (Exh.
V).
Respondent Judge Asuncion filed on September 24, 1968 his answer to

which a reply was filed on October 16, 1968 by herein complainant. In Our
resolution of October 28, 1968, We referred this case to then Justice Cecilia
Muoz Palma of the Court of Appeals, for investigation, report and
recommendation. After hearing, the said Investigating Justice submitted
Lot 1184-D was conveyed to Enriqueta D. Anota, a

stenographer in Judge Asuncion's court (Exhs. F, F-1 and V1), while Lot 1184-E which had an area of 2,172.5556 sq.
meters was sold on July 31, 1964 to Dr. Arcadio Galapon
176
her report dated May 27, 1971 recommending that respondent Judge
should be reprimanded or warned in connection with the first cause of
action alleged in the complaint, and for the second cause of action,
respondent should be warned in case of a finding that he is prohibited
under the law to engage in business. On the third and fourth causes of
action, Justice Palma recommended that respondent Judge be exonerated.
(2) dismissing the complaint against Judge Elias B.

Asuncion;
(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to
pay defendant Judge Elias B. Asuncion,
(a) the sum of FOUR HUNDRED THOUSAND
PESOS [P400,000.00] for moral damages;
The records also reveal that on or about November 9 or 11, 1968 (pp. 481,
477, rec.), complainant herein instituted an action before the Court of First
Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff, versus
Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case
No. 4235, seeking the annulment of the project of partition made pursuant
to the decision in Civil Case No. 3010 and the two orders issued by
respondent Judge approving the same, as well as the partition of the estate
and the subsequent conveyances with damages. It appears, however, that
some defendants were dropped from the civil case. For one, the case
against Dr. Arcadio Galapon was dismissed because he was no longer a
real party in interest when Civil Case No. 4234 was filed, having already
conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge
and on August 31, 1966 the remainder was sold to the Traders
Manufacturing and Fishing Industries, Inc. Similarly, the case against
defendant Victoria Asuncion was dismissed on the ground that she was no
longer a real party in interest at the time the aforesaid Civil Case No. 4234
was filed as the portion of Lot 1184 acquired by her and respondent Judge
from Dr. Arcadio Galapon was already sold on August 31, 1966 to the
Traders Manufacturing and Fishing industries, Inc. Likewise, the cases
against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go,
Jesus Perez, Traders Manufacturing and Fishing Industries, Inc., Alfredo R.
Celestial and Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla,
Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete were
dismissed with the conformity of complainant herein, plaintiff therein, and
her counsel.
(b) the sum of TWO HUNDRED THOUSAND

PESOS
[P200,000.001
for
exemplary
damages;
(c) the sum of FIFTY THOUSAND PESOS
[P50,000.00] for nominal damages; and
(d) he sum of TEN THOUSAND PESOS
[PI0,000.00] for Attorney's Fees.
B. IN THE CASE AGAINST THE DEFENDANT
MARIQUITA VILLASIN, FOR HERSELF AND
FOR THE HEIRS OF THE DECEASED
GERARDO VILLASIN
(1) Dismissing the complaint against the defendants
Mariquita Villasin and the heirs of the deceased Gerardo
Villasin;
(2) Directing the plaintiff to pay the defendants Mariquita
Villasin and the heirs of Gerardo Villasin the cost of the
suit.
On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First

Instance of Leyte, who was directed and authorized on June 2, 1969 by the
then Secretary (now Minister) of Justice and now Minister of National
Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234,
rendered a decision, the dispositive portion of which reads as follows:
C. IN THE CASE AGAINST THE DEFENDANT

SINFOROSA R. BALES, ET AL., WHO WERE
PLAINTIFFS IN CIVIL CASE NO. 3010
(1) Dismissing the complaint against defendants Sinforosa
R. Bales, Adela R. Herrer, Priscilla R. Solis, Luz R. Bakunawa,
Anacorita R. Eng and Ruperto O. Reyes.
A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(1) declaring that only Branch IV of the Court of First
Instance of Leyte has jurisdiction to take cognizance of the
issue of the legality and validity of the Project of Partition
[Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"]
approving the partition;
D. IN THE CASE AGAINST DEFENDANT

BONIFACIO RAMO
(1) Dismissing the complaint against Bonifacio Ramo;
177
(2) Directing the plaintiff to pay the defendant Bonifacio

Ramo the cost of the suit.
question was no longer subject of the litigation. Moreover, at the time of

the sale on March 6, 1965, respondent's order dated October 23, 1963 and
the amended order datedNovember 11, 1963 approving the October 16,
1963 project of partition made pursuant to the June 8, 1963 decision, had
long become final for there was no appeal from said orders.
SO ORDERED [pp. 531-533, rec.]

It is further disclosed by the record that the aforesaid decision was
elevated to the Court of Appeals upon perfection of the appeal on February
22, 1971.
Furthermore, respondent Judge did not buy the lot in question on March 6,
1965 directly from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio
Galapon who earlier purchased on July 31, 1964 Lot 1184-E from three of
the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa
after the finality of the decision in Civil Case No. 3010. It may be recalled
that Lot 1184 or more specifically one-half thereof was adjudicated in equal
shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and
Anacorita Reyes in the project of partition, and the same was subdivided
into five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot
1184-E was sold on July 31, 1964 to Dr. Galapon for which he was issued
TCT No. 2338 by the Register of Deeds of Tacloban City, and on March 6,
1965 he sold a portion of said lot to respondent Judge and his wife who
declared the same for taxation purposes only. The subsequent sale
on August 31, 1966 by spouses Asuncion and spouses Galapon of their
respective shares and interest in said Lot 1184-E to the Traders
Manufacturing and Fishing Industries, Inc., in which respondent was the
president and his wife was the secretary, took place long after the finality
of the decision in Civil Case No. 3010 and of the subsequent two aforesaid
orders therein approving the project of partition.
I
WE find that there is no merit in the contention of complainant Bernardita
R. Macariola, under her first cause of action, that respondent Judge Elias B.
Asuncion violated Article 1491, paragraph 5, of the New Civil Code in
acquiring by purchase a portion of Lot No. 1184-E which was one of those
properties involved in Civil Case No. 3010. 'That Article provides:
Article 1491. The following persons cannot acquire by
purchase, even at a public or judicial action, either in
person or through the mediation of another:
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of
superior and inferior courts, and other officers and
employees connected with the administration of justice,
the property and rights in litigation or levied upon an
execution before the court within whose jurisdiction or
territory they exercise their respective functions; this
prohibition includes the act of acquiring by assignment and
shall apply to lawyers, with respect to the property and
rights which may be the object of any litigation in which
they may take part by virtue of their profession [emphasis
supplied].
While it appears that complainant herein filed on or about November 9 or

11, 1968 an action before the Court of First Instance of Leyte docketed as
Civil Case No. 4234, seeking to annul the project of partition and the two
orders approving the same, as well as the partition of the estate and the
subsequent conveyances, the same, however, is of no moment.
The fact remains that respondent Judge purchased on March 6, 1965 a
portion of Lot 1184-E from Dr. Arcadio Galapon; hence, after the finality of
the decision which he rendered on June 8, 1963 in Civil Case No. 3010 and
his two questioned orders dated October 23, 1963 and November 11,
1963. Therefore, the property was no longer subject of litigation.
The prohibition in the aforesaid Article applies only to the sale or

assignment of the property which is the subject of litigation to the persons
disqualified therein. WE have already ruled that "... for the prohibition to
operate, the sale or assignment of the property must take place during the
pendency of the litigation involving the property" (The Director of Lands vs.
Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de Laig vs. Court of
Appeals, 86 SCRA 641, 646 [1978]).
The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234
can no longer alter, change or affect the aforesaid facts that the
questioned sale to respondent Judge, now Court of Appeals Justice, was
effected and consummated long after the finality of the aforesaid decision
or orders.
Consequently, the sale of a portion of Lot 1184-E to respondent Judge
having taken place over one year after the finality of the decision in Civil
Case No. 3010 as well as the two orders approving the project of partition,
In the case at bar, when the respondent Judge purchased on March 6,

1965 a portion of Lot 1184-E, the decision in Civil Case No. 3010 which he
rendered on June 8, 1963 was already final because none of the parties
therein filed an appeal within the reglementary period; hence, the lot in
178
and not during the pendency of the litigation, there was no violation of
paragraph 5, Article 1491 of the New Civil Code.
by respondent in that respect was done in good faith as

according to Judge Asuncion he was assured by Atty.
Bonifacio Ramo, the counsel of record of Mrs. Macariola,
That he was authorized by his client to submit said project
of partition, (See Exh. B and tsn p. 24, January 20, 1969).
While it is true that such written authority if there was any,
was not presented by respondent in evidence, nor did Atty.
Ramo appear to corroborate the statement of respondent,
his affidavit being the only one that was presented as
respondent's Exh. 10, certain actuations of Mrs. Macariola
lead this investigator to believe that she knew the contents
of the project of partition, Exh. A, and that she gave her
conformity thereto. I refer to the following documents:
It is also argued by complainant herein that the sale on July 31, 1964 of Lot
1184-E to Dr. Arcadio Galapon by Priscilla Reyes, Adela Reyes and Luz R.
Bakunawa was only a mere scheme to conceal the illegal and unethical
transfer of said lot to respondent Judge as a consideration for the approval
of the project of partition. In this connection, We agree with the findings of
the Investigating Justice thus:
And so we are now confronted with this all-important
question whether or not the acquisition by respondent of a
portion of Lot 1184-E and the subsequent transfer of the
whole lot to "TRADERS" of which respondent was the
President and his wife the Secretary, was intimately related
to the Order of respondent approving the project of
partition, Exh. A.
1) Exh. 9 Certified true copy of OCT No. 19520 covering

Lot 1154 of the Tacloban Cadastral Survey in which the
deceased Francisco Reyes holds a "1/4 share" (Exh. 9-a).
On tills certificate of title the Order dated November 11,
1963, (Exh. U) approving the project of partition was duly
entered and registered on November 26, 1963 (Exh. 9-D);
Respondent
vehemently
denies
any
interest
or
participation in the transactions between the Reyeses and
the Galapons concerning Lot 1184-E, and he insists that
there is no evidence whatsoever to show that Dr. Galapon
had acted, in the purchase of Lot 1184-E, in mediation for
him and his wife. (See p. 14 of Respondent's
Memorandum).
2) Exh. 7 Certified copy of a deed of absolute sale

executed by Bernardita Reyes Macariola onOctober 22,
1963, conveying to Dr. Hector Decena the one-fourth share
of the late Francisco Reyes-Diaz in Lot 1154. In this deed of
sale the vendee stated that she was the absolute owner of
said one-fourth share, the same having been adjudicated
to her as her share in the estate of her father Francisco
Reyes Diaz as per decision of the Court of First Instance of
Leyte under case No. 3010 (Exh. 7-A). The deed of sale was
duly registered and annotated at the back of OCT 19520 on
December 3, 1963 (see Exh. 9-e).
xxx xxx xxx

On this point, I agree with respondent that there is no
evidence in the record showing that Dr. Arcadio Galapon
acted as a mere "dummy" of respondent in acquiring Lot
1184-E from the Reyeses. Dr. Galapon appeared to this
investigator as a respectable citizen, credible and sincere,
and I believe him when he testified that he bought Lot
1184-E in good faith and for valuable consideration from
the Reyeses without any intervention of, or previous
understanding with Judge Asuncion (pp. 391- 394, rec.).
In connection with the abovementioned documents it is to

be noted that in the project of partition dated October 16,
1963, which was approved by respondent on October 23,
1963, followed by an amending Order on November 11,
1963, Lot 1154 or rather 1/4 thereof was adjudicated to
Mrs. Macariola. It is this 1/4 share in Lot 1154 which
complainant sold to Dr. Decena on October 22, 1963,
several days after the preparation of the project of
partition.
On the contention of complainant herein that respondent Judge acted

illegally in approving the project of partition although it was not signed by
the parties, We quote with approval the findings of the Investigating
Justice, as follows:
Counsel for complainant stresses the view, however, that

the latter sold her one-fourth share in Lot 1154 by virtue of
the decision in Civil Case 3010 and not because of the
project of partition, Exh. A. Such contention is absurd
because from the decision, Exh. C, it is clear that one-half
1. I agree with complainant that respondent should have

required the signature of the parties more particularly that
of Mrs. Macariola on the project of partition submitted to
him for approval; however, whatever error was committed
179
of one- fourth of Lot 1154 belonged to the estate of

Francisco Reyes Diaz while the other half of said one-fourth
was the share of complainant's mother, Felisa Espiras; in
other words, the decision did not adjudicate the whole of
the one-fourth of Lot 1154 to the herein complainant (see
Exhs. C-3 & C-4). Complainant became the owner of the
entire one-fourth of Lot 1154 only by means of the project
of partition, Exh. A. Therefore, if Mrs. Macariola sold Lot
1154 on October 22, 1963, it was for no other reason than
that she was wen aware of the distribution of the
properties of her deceased father as per Exhs. A and B. It is
also significant at this point to state that Mrs. Macariola
admitted during the cross-examination that she went to
Tacloban City in connection with the sale of Lot 1154 to Dr.
Decena (tsn p. 92, November 28, 1968) from which we can
deduce that she could not have been kept ignorant of the
proceedings in civil case 3010 relative to the project of
partition.
this particular case of respondent, he cannot deny that the transactions

over Lot 1184-E are damaging and render his actuations open to suspicion
and distrust. Even if respondent honestly believed that Lot 1184-E was no
longer in litigation in his court and that he was purchasing it from a third
person and not from the parties to the litigation, he should nonetheless
have refrained from buying it for himself and transferring it to a
corporation in which he and his wife were financially involved, to avoid
possible suspicion that his acquisition was related in one way or another to
his official actuations in civil case 3010. The conduct of respondent gave
cause for the litigants in civil case 3010, the lawyers practising in his court,
and the public in general to doubt the honesty and fairness of his
actuations and the integrity of our courts of justice" (pp. 395396, rec.).
II
With respect to the second cause of action, the complainant alleged that
respondent Judge violated paragraphs 1 and 5, Article 14 of the Code of
Commerce when he associated himself with the Traders Manufacturing and
Fishing Industries, Inc. as a stockholder and a ranking officer, said
corporation having been organized to engage in business. Said Article
provides that:
Complainant also assails the project of partition because

according to her the properties adjudicated to her were
insignificant lots and the least valuable. Complainant,
however, did not present any direct and positive evidence
to prove the alleged gross inequalities in the choice and
distribution of the real properties when she could have
easily done so by presenting evidence on the area,
location, kind, the assessed and market value of said
properties. Without such evidence there is nothing in the
record to show that there were inequalities in the
distribution of the properties of complainant's father (pp.
386389, rec.).
Article 14 The following cannot engage in commerce,

either in person or by proxy, nor can they hold any office or
have any direct, administrative, or financial intervention in
commercial or industrial companies within the limits of the
districts, provinces, or towns in which they discharge their
duties:
1. Justices of the Supreme Court, judges and officials of the
department of public prosecution in active service. This
provision shall not be applicable to mayors, municipal
judges, and municipal prosecuting attorneys nor to those
who by chance are temporarily discharging the functions of
judge or prosecuting attorney.
Finally, while it is. true that respondent Judge did not violate paragraph 5,
Article 1491 of the New Civil Code in acquiring by purchase a portion of Lot
1184-E which was in litigation in his court, it was, however, improper for
him to have acquired the same. He should be reminded of Canon 3 of the
Canons of Judicial Ethics which requires that: "A judge's official conduct
should be free from the appearance of impropriety, and his personal
behavior, not only upon the bench and in the performance of judicial
duties, but also in his everyday life, should be beyond reproach." And as
aptly observed by the Investigating Justice: "... it was unwise and indiscreet
on the part of respondent to have purchased or acquired a portion of a
piece of property that was or had been in litigation in his court and caused
it to be transferred to a corporation of which he and his wife were ranking
officers at the time of such transfer. One who occupies an exalted position
in the judiciary has the duty and responsibility of maintaining the faith and
trust of the citizenry in the courts of justice, so that not only must he be
truly honest and just, but his actuations must be such as not give cause for
doubt and mistrust in the uprightness of his administration of justice. In
xxx xxx xxx

5. Those who by virtue of laws or special provisions may
not engage in commerce in a determinate territory.
It is Our considered view that although the aforestated provision is
incorporated in the Code of Commerce which is part of the commercial
laws of the Philippines, it, however, partakes of the nature of a political law
as it regulates the relationship between the government and certain public
officers and employees, like justices and judges.
180
Political Law has been defined as that branch of public law which deals with
the organization and operation of the governmental organs of the State
and define the relations of the state with the inhabitants of its territory
(People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that
political law embraces constitutional law, law of public corporations,
administrative law including the law on public officers and elections.
Specifically, Article 14 of the Code of Commerce partakes more of the
nature of an administrative law because it regulates the conduct of certain
public officers and employees with respect to engaging in business: hence,
political in essence.
On such transfer (by cession) of territory, it

has never been held that the relations of
the inhabitants with each other undergo
any change. Their relations with their
former sovereign are dissolved, and new
relations are created between them and
the government which has acquired their
territory. The same act which transfers their
country, transfers the allegiance of those
who remain in it; and the law which may be
denominated
political,
is
necessarily
changed, although that which regulates the
intercourse and general conduct of
individuals, remains in force, until altered
by the newly- created power of the State.
It is significant to note that the present Code of Commerce is the Spanish

Code of Commerce of 1885, with some modifications made by the
"Commission de Codificacion de las Provincias de Ultramar," which was
extended to the Philippines by the Royal Decree of August 6, 1888, and
took effect as law in this jurisdiction on December 1, 1888.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated
that: "It is a general principle of the public law that on acquisition of
territory the previous political relations of the ceded region are totally
abrogated. "
Upon the transfer of sovereignty from Spain to the United States and later
on from the United States to the Republic of the Philippines, Article 14 of
this Code of Commerce must be deemed to have been abrogated because
where there is change of sovereignty, the political laws of the former
sovereign, whether compatible or not with those of the new sovereign, are
automatically abrogated, unless they are expressly re-enacted by
affirmative act of the new sovereign.
There appears no enabling or affirmative act that continued the effectivity

of the aforestated provision of the Code of Commerce after the change of
sovereignty from Spain to the United States and then to the Republic of the
Philippines. Consequently, Article 14 of the Code of Commerce has no legal
and binding effect and cannot apply to the respondent, then Judge of the
Court of First Instance, now Associate Justice of the Court of Appeals.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311
[1912]) that:
It is also argued by complainant herein that respondent Judge violated

paragraph H, Section 3 of Republic Act No. 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, which provides that:
By well-settled public law, upon the cession of territory by

one nation to another, either following a conquest or
otherwise, ... those laws which are political in their nature
and pertain to the prerogatives of the former government
immediately cease upon the transfer of sovereignty.
(Opinion, Atty. Gen., July 10, 1899).
Sec. 3. Corrupt practices of public officers. In addition to

acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices
of any public officer and are hereby declared to be
unlawful:
While municipal laws of the newly acquired territory not in

conflict with the, laws of the new sovereign continue in
force without the express assent or affirmative act of the
conqueror, the political laws do not. (Halleck's Int. Law,
chap. 34, par. 14). However, such political laws of the prior
sovereignty as are not in conflict with the constitution or
institutions of the new sovereign, may be continued in
force if the conqueror shall so declare by affirmative act of
the commander-in-chief during the war, or by Congress in
time of peace. (Ely's Administrator vs. United States, 171
U.S. 220, 43 L. Ed. 142). In the case of American and
Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.]
511, 542, 7 L. Ed. 242), Chief Justice Marshall said:
xxx xxx xxx

(h) Directly or indirectly having financial or
pecuniary interest in any business, contract
or transaction in connection with which he
intervenes or takes part in his official
capacity, or in which he is prohibited by the
Constitution or by any Iaw from having any
interest.
181
Respondent Judge cannot be held liable under the aforestated paragraph

because there is no showing that respondent participated or intervened in
his official capacity in the business or transactions of the Traders
Manufacturing and Fishing Industries, Inc. In the case at bar, the business
of the corporation in which respondent participated has obviously no
relation or connection with his judicial office. The business of said
corporation is not that kind where respondent intervenes or takes part in
his capacity as Judge of the Court of First Instance. As was held in one case
involving the application of Article 216 of the Revised Penal Code which
has a similar prohibition on public officers against directly or indirectly
becoming interested in any contract or business in which it is his official
duty to intervene, "(I)t is not enough to be a public official to be subject to
this crime; it is necessary that by reason of his office, he has to intervene
in said contracts or transactions; and, hence, the official who intervenes in
contracts or transactions which have no relation to his office cannot
commit this crime.' (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited
by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).
Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil

Code against the purchase by judges of a property in litigation before the
court within whose jurisdiction they perform their duties, cannot apply to
respondent Judge because the sale of the lot in question to him took place
after the finality of his decision in Civil Case No. 3010 as well as his two
orders approving the project of partition; hence, the property was no longer
subject of litigation.
In addition, although Section 12, Rule XVIII of the Civil Service Rules made
pursuant to the Civil Service Act of 1959 prohibits an officer or employee in
the civil service from engaging in any private business, vocation, or
profession or be connected with any commercial, credit, agricultural or
industrial undertaking without a written permission from the head of
department, the same, however, may not fall within the purview of
paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because
the last portion of said paragraph speaks of a prohibition by
the Constitution or law on any public officer from having any interest in any
business and not by a mere administrative rule or regulation. Thus, a
violation of the aforesaid rule by any officer or employee in the civil
service, that is, engaging in private business without a written permission
from the Department Head may not constitute graft and corrupt practice
as defined by law.
It does not appear also from the records that the aforesaid corporation
gained any undue advantage in its business operations by reason of
respondent's financial involvement in it, or that the corporation benefited
in one way or another in any case filed by or against it in court. It is
undisputed that there was no case filed in the different branches of the
Court of First Instance of Leyte in which the corporation was either party
plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R.
Macariola, plaintiff, versus Sinforosa O. Bales, et al.," wherein the
complainant herein sought to recover Lot 1184-E from the aforesaid
corporation. It must be noted, however, that Civil Case No. 4234 was filed
only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI
Judge Jose D. Nepomuceno when respondent Judge was no longer
connected with the corporation, having disposed of his interest therein on
January 31, 1967.
On the contention of complainant that respondent Judge violated Section

12, Rule XVIII of the Civil Service Rules, We hold that the Civil Service Act of
1959 (R.A. No. 2260) and the Civil Service Rules promulgated thereunder,
particularly Section 12 of Rule XVIII, do not apply to the members of the
Judiciary. Under said Section 12: "No officer or employee shall engage
directly in any private business, vocation, or profession or be connected
with any commercial, credit, agricultural or industrial undertaking without a
written permission from the Head of Department ..."
It must be emphasized at the outset that respondent, being a member of
the Judiciary, is covered by Republic Act No. 296, as amended, otherwise
known as the Judiciary Act of 1948 and by Section 7, Article X, 1973
Constitution.
Furthermore, respondent is not liable under the same paragraph because

there is no provision in both the 1935 and 1973 Constitutions of the
Philippines, nor is there an existing law expressly prohibiting members of
the Judiciary from engaging or having interest in any lawful business.
Under Section 67 of said law, the power to remove or dismiss judges was
then vested in the President of the Philippines, not in the Commissioner of
Civil Service, and only on two grounds, namely, serious misconduct and
inefficiency, and upon the recommendation of the Supreme Court, which
alone is authorized, upon its own motion, or upon information of the
Secretary (now Minister) of Justice to conduct the corresponding
investigation. Clearly, the aforesaid section defines the grounds and
prescribes the special procedure for the discipline of judges.
It may be pointed out that Republic Act No. 296, as amended, also known
as the Judiciary Act of 1948, does not contain any prohibition to that effect.
As a matter of fact, under Section 77 of said law, municipal judges may
engage in teaching or other vocation not involving the practice of law after
office hours but with the permission of the district judge concerned.
Likewise, Article 14 of the Code of Commerce which prohibits judges from
engaging in commerce is, as heretofore stated, deemed abrogated
automatically upon the transfer of sovereignty from Spain to America,
because it is political in nature.
182
And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the
Supreme Court can discipline judges of inferior courts as well as other
personnel of the Judiciary.
stockholder and a ranking officer, is not violative of the provissions of

Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and
Corrupt Practices Act as well as Section 12, Rule XVIII of the Civil Service
Rules promulgated pursuant to the Civil Service Act of 1959, the
impropriety of the same is clearly unquestionable because Canon 25 of the
Canons of Judicial Ethics expressly declares that:
It is true that under Section 33 of the Civil Service Act of 1959: "The
Commissioner may, for ... violation of the existing Civil Service Law and
rules or of reasonable office regulations, or in the interest of the service,
remove any subordinate officer or employee from the service, demote him
in rank, suspend him for not more than one year without pay or fine him in
an amount not exceeding six months' salary." Thus, a violation of Section
12 of Rule XVIII is a ground for disciplinary action against civil service
officers and employees.
A judge should abstain from making personal investments

in enterprises which are apt to be involved in litigation in
his court; and, after his accession to the bench, he should
not retain such investments previously made, longer than a
period sufficient to enable him to dispose of them without
serious loss. It is desirable that he should, so far as
reasonably possible, refrain from all relations which would
normally tend to arouse the suspicion that such relations
warp or bias his judgment, or prevent his impartial attitude
of mind in the administration of his judicial duties. ...
However, judges cannot be considered as subordinate civil service officers

or employees subject to the disciplinary authority of the Commissioner of
Civil Service; for, certainly, the Commissioner is not the head of the Judicial
Department to which they belong. The Revised Administrative Code
(Section 89) and the Civil Service Law itself state that the Chief Justice is
the department head of the Supreme Court (Sec. 20, R.A. No. 2260)
[1959]); and under the 1973 Constitution, the Judiciary is the only other or
second branch of the government (Sec. 1, Art. X, 1973 Constitution).
Besides, a violation of Section 12, Rule XVIII cannot be considered as a
ground for disciplinary action against judges because to recognize the
same as applicable to them, would be adding another ground for the
discipline of judges and, as aforestated, Section 67 of the Judiciary Act
recognizes only two grounds for their removal, namely, serious misconduct
and inefficiency.
WE are not, however, unmindful of the fact that respondent Judge and his
wife had withdrawn on January 31, 1967 from the aforesaid corporation
and sold their respective shares to third parties, and it appears also that
the aforesaid corporation did not in anyway benefit in any case filed by or
against it in court as there was no case filed in the different branches of
the Court of First Instance of Leyte from the time of the drafting of the
Articles of Incorporation of the corporation on March 12, 1966, up to its
incorporation on January 9, 1967, and the eventual withdrawal of
respondent on January 31, 1967 from said corporation. Such disposal or
sale by respondent and his wife of their shares in the corporation only 22
days after the incorporation of the corporation, indicates that respondent
realized that early that their interest in the corporation contravenes the
aforesaid Canon 25. Respondent Judge and his wife therefore deserve the
commendation for their immediate withdrawal from the firm after its
incorporation and before it became involved in any court litigation
Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the
Commissioner of Civil Service who has original and exclusive jurisdiction
"(T)o decide, within one hundred twenty days, after submission to it, all
administrative cases against permanent officers and employees in the
competitive service, and, except as provided by law, to have final authority
to pass upon their removal, separation, and suspension and upon all
matters relating to the conduct, discipline, and efficiency of such officers
and employees; and prescribe standards, guidelines and regulations
governing the administration of discipline" (emphasis supplied). There is no
question that a judge belong to the non-competitive or unclassified service
of the government as a Presidential appointee and is therefore not covered
by the aforesaid provision. WE have already ruled that "... in interpreting
Section 16(i) of Republic Act No. 2260, we emphasized that only
permanent officers and employees who belong to the classified service
come under the exclusive jurisdiction of the Commissioner of Civil Service"
(Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9
SCRA 619 [1963]).
III
With respect to the third and fourth causes of action, complainant alleged
that respondent was guilty of coddling an impostor and acted in disregard
of judicial decorum, and that there was culpable defiance of the law and
utter disregard for ethics. WE agree, however, with the recommendation of
the Investigating Justice that respondent Judge be exonerated because the
aforesaid causes of action are groundless, and WE quote the pertinent
portion of her report which reads as follows:
The basis for complainant's third cause of action is the
claim that respondent associated and closely fraternized
with Dominador Arigpa Tan who openly and publicly
advertised himself as a practising attorney (see Exhs. I, I-1
Although the actuation of respondent Judge in engaging in private business

by joining the Traders Manufacturing and Fishing Industries, Inc. as a
183
and J) when in truth and in fact said Dominador Arigpa Tan

does not appear in the Roll of Attorneys and is not a
member of the Philippine Bar as certified to in Exh. K.
member of the Judiciary must not only be characterized with propriety but
must always be above suspicion.
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF
APPEALS IS HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND
BUSINESS ACTIVITIES.
The "respondent denies knowing that Dominador Arigpa

Tan was an "impostor" and claims that all the time he
believed that the latter was a bona fide member of the bar.
I see no reason for disbelieving this assertion of
respondent. It has been shown by complainant that
Dominador Arigpa Tan represented himself publicly as an
attorney-at-law to the extent of putting up a signboard with
his name and the words "Attorney-at Law" (Exh. I and 1- 1)
to indicate his office, and it was but natural for respondent
and any person for that matter to have accepted that
statement on its face value. "Now with respect to the
allegation of complainant that respondent is guilty of
fraternizing with Dominador Arigpa Tan to the extent of
permitting his wife to be a godmother of Mr. Tan's child at
baptism (Exh. M & M-1), that fact even if true did not
render respondent guilty of violating any canon of judicial
ethics as long as his friendly relations with Dominador A.
Tan and family did not influence his official actuations as a
judge where said persons were concerned. There is no
tangible convincing proof that herein respondent gave any
undue privileges in his court to Dominador Arigpa Tan or
that the latter benefitted in his practice of law from his
personal relations with respondent, or that he used his
influence, if he had any, on the Judges of the other
branches of the Court to favor said Dominador Tan.
SO ORDERED.
Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova
and Gutierrez, JJ., concur.
Concepcion Jr., J., is on leave.
Fernando, C.J., Abad Santos and Esolin JJ., took no part.
****Vilas v. City of Manila (Insert here)

SUPREME COURT
Manila
EN BANC
G.R. No. L-9959 December 13, 1916
Of course it is highly desirable for a member of the

judiciary to refrain as much as possible from maintaining
close friendly relations with practising attorneys and
litigants in his court so as to avoid suspicion 'that his social
or business relations or friendship constitute an element in
determining his judicial course" (par. 30, Canons of Judicial
Ethics), but if a Judge does have social relations, that in
itself would not constitute a ground for disciplinary action
unless it be clearly shown that his social relations be
clouded his official actuations with bias and partiality in
favor of his friends (pp. 403-405, rec.).
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, represented by

the Treasurer of the Philippine Islands,plaintiff-appellee,
vs.
EL MONTE DE PIEDAD Y CAJA DE AHORRAS DE MANILA, defendantappellant.
William A. Kincaid and Thomas L. Hartigan for appellant.
Attorney-General Avancea for appellee.
In conclusion, while respondent Judge Asuncion, now Associate Justice of

the Court of Appeals, did not violate any law in acquiring by purchase a
parcel of land which was in litigation in his court and in engaging in
business by joining a private corporation during his incumbency as judge of
the Court of First Instance of Leyte, he should be reminded to be more
discreet in his private and business activities, because his conduct as a
TRENT, J.:
About $400,000, were subscribed and paid into the treasury of the
Philippine Islands by the inhabitants of the Spanish Dominions of the relief
of those damaged by the earthquake which took place in the Philippine
Islands on June 3, 1863. Subsequent thereto and on October 6 of that year,
184
a central relief board was appointed, by authority of the King of Spain, to

distribute the moneys thus voluntarily contributed. After a thorough
investigation and consideration, the relief board allotted $365,703.50 to
the various sufferers named in its resolution, dated September 22, 1866,
and, by order of the Governor-General of the Philippine Islands, a list of
these allotments, together with the names of those entitled thereto, was
published in the Official Gazette of Manila dated April 7, 1870. There was
later distributed, inaccordance with the above-mentioned allotments, the
sum of $30,299.65, leaving a balance of S365,403.85 for distribution. Upon
the petition of the governing body of the Monte de Piedad, dated February
1, 1833, the Philippine Government, by order dated the 1st of that month,
directed its treasurer to turn over to the Monte de Piedad the sum of
$80,000 of the relief fund in installments of $20,000 each. These amounts
were received on the following dates: February 15, March 12, April 14, and
June 2, 1883, and are still in the possession of the Monte de Piedad. On
account of various petitions of the persons, and heirs of others to whom
the above-mentioned allotments were made by the central relief board for
the payment of those amounts, the Philippine Islands to bring suit against
the Monte de Piedad a recover, "through the Attorney-General and in
representation of the Government of the Philippine Islands," the $80.000,
together with interest, for the benefit of those persons or their heirs
appearing in the list of names published in the Official Gazette instituted
on May 3, 1912, by the Government of the Philippine Islands, represented
by the Insular Treasurer, and after due trial, judgment was entered in favor
of the plaintiff for the sum of $80,000 gold or its equivalent in Philippine
currency, together with legal interest from February 28, 1912, and the
costs of the cause. The defendant appealed and makes the following
assignment of errors:
4. That the court erred in not declaring that Act Numbered 2109,
passed by the Philippine Legislature on January 30, 1912, is
unconstitutional.
5. That the court erred in holding in its decision that there is no
title for the prescription of this suit brought by the Insular
Government against the Monte de Piedad y Caja de Ahorros for the
reimbursement of the eighty thousand dollars ($80,000) given to it
by the late Spanish Government of these Islands.
6. That the court erred in sentencing the Monte de Piedad y Caja
de Ahorros to reimburse the Philippine Government in the sum of
eighty thousand dollars ($80,000) gold coin, or the equivalent
thereof in the present legal tender currency in circulation, with
legal interest thereon from February 28th, 1912, and the costs of
this suit.
In the royal order of June 29, 1879, the Governor-General of the Philippine
Islands was directed to inform the home Government in what manner the
indemnity might be paid to which, by virtue of the resolutions of the relief
board, the persons who suffered damage by the earthquake might be
entitled, in order to perform the sacred obligation which the Government of
Spain had assumed toward the donors.
The next pertinent document in order is the defendant's petition, dated
February 1, 1883, addressed to the Governor-General of the Philippine
Islands, which reads:
1. The court erred in not finding that the eighty thousand dollars
($80,000), give to the Monte de Piedad y Caja de Ahorros, were so
given as a donation subject to one condition, to wit: the return of
such sum of money to the Spanish Government of these Islands,
within eight days following the day when claimed, in case the
Supreme Government of Spain should not approve the action taken
by the former government.
Board of Directors of the Monte de Piedad of Manila Presidencia.

Excellency: The Board of Directors of the Monte de Piedad y Caja
de Ahorros of Manila informs your Excellency, First: That the funds
which it has up to the present been able to dispose of have been
exhausted in loans on jewelry, and there only remains the sum of
one thousand and odd pesos, which will be expended between today and day after tomorrow. Second: That, to maintain the credit of
the establishment, which would be greatly injured were its
operations suspended, it is necessary to procure money. Third:
That your Excellency has proposed to His Majesty's Government to
apply to the funds of the Monte de Piedad a part of the funds held
in the treasury derived form the national subscription for the relief
of the distress caused by the earthquake of 1863. Fourth: That in
the public treasury there is held at the disposal of the central
earthquake relief board over $1090,000 which was deposited in the
said treasury by order of your general Government, it having been
transferred thereto from the Spanish-Filipino Bank where it had
been held. fifth: That in the straightened circumstances of the
moment, your Excellency can, to avert impending disaster to
2. The court erred in not having decreed that this donation had
been cleared; said eighty thousand dollars ($80,000) being at
present the exclusive property of the appellant the Monte de
Piedad y Caja de Ahorros.
3. That the court erred in stating that the Government of the
Philippine Islands has subrogated the Spanish Government in its
rights, as regards an important sum of money resulting from a
national subscription opened by reason of the earthquake of June
3, 1863, in these Island.
185
the Monte de Piedad, order that, out of that sum of one hundred
thousand pesos held in the Treasury at the disposal of the central
relief board, there be transferred to the Monte de Piedad the sum
of $80,000, there to be held under the same conditions as at
present in the Treasury, to wit, at the disposal of the Relief Board.
Sixth: That should this transfer not be approved for any reason,
either because of the failure of His Majesty's Government to
approve the proposal made by your Excellency relative to the
application to the needs of the Monte de Piedad of a pat of the
subscription intended to believe the distress caused by the
earthquake of 1863, or for any other reason, the board of directors
of the Monte de Piedad obligates itself to return any sums which it
may have received on account of the eighty thousand pesos, or the
whole thereof, should it have received the same, by securing a
loan from whichever bank or banks may lend it the money at the
cheapest rate upon the security of pawned jewelry. This is an
urgent measure to save the Monte de Piedad in the present crisis
and the board of directors trusts to secure your Excellency's entire
cooperation and that of the other officials who have take part in
the transaction.
as a surplus should be delivered to the Monte de Piedad, either as

a donation, or as a loan upon the security of the credit of the
institution, believing that in so doing the wishes of the donors
would be faithfully interpreted inasmuch as those wishes were no
other than to relieve distress, an act of charity which is exercised in
the highest degree by the Monte de Piedad, for it liberates needy
person from the pernicious effects of usury; and
Considering that the lofty purposes that brought about the creation
of the pious institution referred to would be frustrated, and that the
great and laudable work of its establishment, and that the great
and laudable and valuable if the aid it urgently seeks is not
granted, since the suspension of its operations would seriously and
regrettably damage the ever-growing credit of the Monte de
Piedad; and
Considering that if such a thing would at any time cause deep
distress in the public mind, it might be said that at the present
juncture it would assume the nature of a disturbance of public
order because of the extreme poverty of the poorer classes
resulting from the late calamities, and because it is the only
institution which can mitigate the effects of such poverty; and
The Governor-General's resolution on the foregoing petition is as follows:

GENERAL
GOVERNMENT
MANILA, February 1, 1883.
OF
THE
PHILIPPINES.
Considering that no reasonable objection can be made to granting

the request herein contained, for the funds in question are
sufficiently secured in the unlikely event that H> M. Government
does not approve the recommendation mentioned, this general
Government, in the exercise of the extraordinary powers conferred
upon it and in conformity with the report of the Intendencia de
Hacienda, resolves as follows:
In view of the foregoing petition addressed to me by the board of

directors of the Monte de Piedad of this city, in which it is stated
that the funds which the said institution counted upon are nearly
all invested in loans on jewelry and that the small account
remaining will scarcely suffice to cover the transactions of the next
two days, for which reason it entreats the general Government
that, in pursuance of its telegraphic advice to H. M. Government,
the latter direct that there be turned over to said Monte de
Piedad $80,000 out of the funds in the public treasury obtained
from the national subscription for the relief of the distress caused
by the earthquake of 1863, said board obligating itself to return
this sum should H. M. Government, for any reason, not approve the
said proposal, and for this purpose it will procure funds by means
of loans raised on pawned jewelry; it stated further that if the aid
so solicited is not furnished, it will be compelled to suspend
operations, which would seriously injure the credit of so beneficient
an institution; and in view of the report upon the matter made by
the Intendencia General de Hacienda; and considering the fact that
the public treasury has on hand a much greater sum from the
source mentioned than that solicited; and considering that this
general Government has submitted for the determination of H. M.
Government that the balance which, after strictly applying the
proceeds obtained from the subscription referred to, may remain
First. Authority is hereby given to deliver to the Monte de Piedad,

out of the sum held in the public treasury of these Islands obtained
from the national subscription opened by reason of the
earthquakes of 1863, amounts up to the sum $80,000, as its needs
may require, in installments of $20,000.
Second. The board of directors of the Monte de Piedad is solemnly
bound to return, within eight days after demand, the sums it may
have so received, if H. M. Government does not approve this
resolution.
Third. The Intendencia General de Hacienda shall forthwith, and in
preference to all other work, proceed to prepare the necessary
papers so that with the least possible delay the payment referred
to may be made and the danger that menaces the Monte de
Piedad of having to suspend its operations may be averted.
186
H. M. Government
(Signed) P. DE RIVERA.
shall
be
advised
hereof.lawphi1.net
that fund and which were expended in a different way from that
intended by the donors) and this Intendencia believed the moment
had arrived to claim from the board of directors of theMonte de
Piedad y Caja de Ahorros the sum of 80,000 pesos which, by
decree of your general Government of the date of February 1,
1883, was loaned to it out of the said funds, the (Monte de Piedad)
obligating itself to return the same within the period of eight days if
H. M. Government did not approve the delivery. On this
Intendencia's demanding from the Monte de Piedad the eighty
thousand pesos, thus complying with the provisions of the Royal
Order, it was to be supposed that no objection to its return would
be made by theMonte de Piedad for, when it received the loan, it
formally engaged itself to return it; and, besides, it was
indisputable that the moment to do so had arrived, inasmuch as H.
M. Government, in ordering that the assets of the earthquake relief
fund should he collected, makes express mention of the 80,000
pesos loaned to the Monte de Piedad, without doubt considering as
sufficient the period of ten years during which it has been using
this large sum which lawfully belongs to their persons.
This Intendencia also supposed that theMonte de Piedad no longer
needed the amount of that loan, inasmuch as, far from investing it
in beneficient transactions, it had turned the whole amount into
the voluntary deposit funds bearing 5 per cent interests, the result
of this operation being that the debtor loaned to the creditor on
interest what the former had gratuitously received. But the Monte
de Piedad, instead of fulfilling the promise it made on receiving the
sum, after repeated demands refused to return the money on the
ground
that
only
your
Excellency,
and
not
theIntendencia (Treasury), is entitled to order the reimbursement,
taking no account of the fact that this Intendencia was acting in
the discharge of a sovereign command, the fulfillment of which
your Excellency was pleased to order; and on the further ground
that the sum of 80,000 pesos which it received from the fund
intended for the earthquake victims was not received as a loan, but
as a donation, this in the opinion of thisIntendencia, erroneously
interpreting both the last royal order which directed the
apportionment of the amount of the subscription raised in the year
1863 and the superior decree which granted the loan, inasmuch as
in this letter no donation is made to the Monte de Piedad of the
80,000 pesos, but simply a loan; besides, no donation whatever
could be made of funds derived from a private subscription raised
for a specific purpose, which funds are already distributed and the
names of the beneficiaries have been published in the Gaceta,
there being lacking only the mere material act of the delivery,
which has been unduly delayed. In view of the unexpected reply
made by the Monte de Piedad, and believing it useless to insist
further in the matter of the claim for the aforementioned loan, or to
argue in support thereof, this Intendencia believes the intervention
of your Excellency necessary in this matter, if the royal Order No.
1044 of December 3, last, is to be complied with, and for this
By the royal order of December 3, 1892, the Governor-General of the

Philippine Islands was ordered to "inform thisministerio what is the total
sum available at the present time, taking into consideration the sums
delivered to theMonte de Piedad pursuant to the decree issued by your
general Government on February 1, 1883," and after the rights of the
claimants, whose names were published in the Official Gazette of Manila on
April 7, 1870, and their heirs had been established, as therein provided, as
such persons "have an unquestionable right to be paid the donations
assigned to them therein, your general Government shall convoke them all
within a reasonable period and shall pay their shares to such as shall
identify themselves, without regard to their financial status," and finally
"that when all the proceedings and operations herein mentioned have been
concluded and the Government can consider itself free from all kinds of
claims on the part of those interested in the distribution of the funds
deposited in the vaults of the Treasury, such action may be taken as the
circumstances shall require, after first consulting the relief board and your
general Government and taking account of what sums have been delivered
to the Monte de Piedad and those that were expended in 1888 to relieve
public calamities," and "in order that all the points in connection with the
proceedings had as a result of the earthquake be clearly understood, it is
indispensable that the offices hereinbefore mentioned comply with the
provisions contained in paragraphs 2 and 3 of the royal order of June 25,
1879." On receipt of this Finance order by the Governor-General, the
Department of Finance was called upon for a report in reference to the
$80,000 turned over to the defendant, and that Department's report to the
Governor-General dated June 28, 1893, reads:
Intendencia General de Hacienda de Filipinas (General Treasury of
the Philippines) Excellency. By Royal Order No. 1044 of
December 3, last, it is provided that the persons who sustained
losses by the earthquakes that occurred in your capital in the year
1863 shall be paid the amounts allotted to them out of the sums
sent from Spain for this purpose, with observance of the rules
specified in the said royal order, one of them being that before
making the payment to the interested parties the assets shall be
reduced to money. These assets, during the long period of time
that has elapsed since they were turned over to the Treasury of the
Philippine Islands, were used to cover the general needs of the
appropriation, a part besides being invested in the relief of
charitable institutions and another part to meet pressing needs
occasioned by public calamities. On January 30, last, your
Excellency was please to order the fulfillment of that sovereign
mandate and referred the same to this Intendencia for its
information and the purposes desired (that is, for compliance with
its directions and, as aforesaid, one of these being the liquidation,
recovery, and deposit with the Treasury of the sums paid out of
187
purpose I beg your Excellency kindly to order the Monte de

Piedad to reimburse within the period of eight days the 80,000
which it owes, and that you give this Intendencia power to carry
out the provisions of the said royal order. I must call to the
attention of your Excellency that the said pious establishment,
during the last few days and after demand was made upon it, has
endorsed to the Spanish-Filipino Bank nearly the whole of the sum
which it had on deposit in the general deposit funds.
twenty thousand pesos, which they deposited with their own funds.
On the same account and on each of the dates of March 12, April
14 and June 2 of the said year, 1883, they also received and turned
into their funds a like sum of twenty thousand pesos, making a
total of eighty thousand pesos. (Signed) Emilio Moreta.
I hereby certify that the foregoing is a literal copy of that found in
the letter book No. 2 of those Pious Institutions.
The record in the case under consideration fails to disclose any further
definite action taken by either the Philippine Government or the Spanish
Government in regard to the $80,000 turned over to the Monte de Piedad.
Manila,
(Sgd.)
Secretary
In the defendant's general ledger the following entries appear: "Public

Treasury: February 15, 1883, $20,000; March 12, 1883, $20,000; April 14,
1883, $20,000; June 2, 1883, $20,000, total $80,000." The book entry for
this total is as follows: "To the public Treasury derived from the subscription
for the earthquake of 1863, $80,000 received from general Treasury as a
returnable loan, and without interest." The account was carried in this
manner until January 1, 1899, when it was closed by transferring the
amount to an account called "Sagrada Mitra," which latter account was a
loan of $15,000 made to the defendant by the Archbishop of Manila,
without interest, thereby placing the "Sagrada Mitra" account at $95,000
instead of $15,000. The above-mentioned journal entry for January 1, 1899,
reads: "Sagrada Mitra and subscription, balance of these two account
which on this date are united in accordance with an order of the Exmo. Sr.
Presidente of the Council transmitted verbally to the Presidente Gerente of
these institutions, $95,000."
(Sgd.)
O.
Managing Director.
November
EMILIO
K.
19,
EMILIO
1913
LAZCANOTEGUI,
MORETA,
The foregoing documentary evidence shows the nature of the transactions

which took place between the Government of Spain and the Philippine
Government on the one side and the Monte de Piedad on the other,
concerning the $80,000. The Monte de Piedad, after setting forth in its
petition to the Governor-General its financial condition and its absolute
necessity for more working capital, asked that out of the sum of $100,000
held in the Treasury of the Philippine Islands, at the disposal of the central
relief board, there be transferred to it the sum of $80,000 to be held under
the same conditions, to wit, "at the disposal of the relief board." The Monte
de Piedad agreed that if the transfer of these funds should not be approved
by the Government of Spain, the same would be returned forthwith. It did
not ask that the $80,000 be given to it as a donation. The GovernorGeneral, after reciting the substance of the petition, stated that "this
general Government has submitted for the determination of H. M.
Government that the balance which, after strictly applying the proceeds
obtained from the subscription referred to, may remain as a surplus, should
be delivered to the Monte de Piedad, either as a donation, or as a loan
upon the security of the credit of the institution," and "considering that no
reasonable objection can be made to granting the request herein
contained," directed the transfer of the $80,000 to be made with the
understanding that "the Board of Directors of the Monte de Piedad is
solemnly bound to return, within eight days after demand, the sums it may
have so received, if H. M. Government does not approve this resolution." It
will be noted that the first and only time the word "donation" was used in
connection with the $80,000 appears in this resolution of the GovernorGeneral. It may be inferred from the royal orders that the Madrid
Government did tacitly approve of the transfer of the $80,000 to the Monte
de Piedad as a loan without interest, but that Government certainly did not
approve such transfer as a donation for the reason that the GovernorGeneral was directed by the royal order of December 3, 1892, to inform the
Madrid Government of the total available sum of the earthquake fund,
"taking into consideration the sums delivered to the Monte de
On March 16, 1902, the Philippine government called upon the defendant
for information concerning the status of the $80,000 and received the
following reply:
MANILA, March 31, 1902.
To the Attorney-General of the Department of Justice of the
Philippine Islands.
SIR: In reply to your courteous letter of the 16th inst., in which you
request information from this office as to when and for what
purpose the Spanish Government delivered to the Monte de
Piedad eighty thousand pesos obtained from the subscription
opened in connection with the earthquake of 1863, as well as any
other information that might be useful for the report which your
office is called upon to furnish, I must state to your department
that the books kept in these Pious Institutions, and which have
been consulted for the purpose, show that on the 15th of February,
1883, they received as a reimbursable loan and without interest,
188
Piedad pursuant to the decree issued by your general Government on

February 1, 1883." This language, nothing else appearing, might admit of
the interpretation that the Madrid Government did not intend that the
Governor-General of the Philippine Islands should include the $80,000 in
the total available sum, but when considered in connection with the report
of the Department of Finance there can be no doubt that it was so
intended. That report refers expressly to the royal order of December 3d,
and sets forth in detail the action taken in order to secure the return of the
$80,000. The Department of Finance, acting under the orders of the
Governor-General, understood that the $80,000 was transferred to
the Monte de Piedad well knew that it received this sum as a loan interest."
The amount was thus carried in its books until January, 1899, when it was
transferred to the account of the "Sagrada Mitra" and was thereafter
known as the "Sagrada Mitra and subscription account." Furthermore,
the Monte de Piedad recognized and considered as late as March 31, 1902,
that it received the $80,000 "as a returnable loan, and without interest."
Therefore, there cannot be the slightest doubt the fact that the Monte de
Piedad received the $80,000 as a mere loan or deposit and not as a
donation. Consequently, the first alleged error is entirely without
foundation.
In view of these circumstances it must be quite clear that, even

without the express provisions of the Treaty of Paris, which
apparently expressly exclude such an idea, it did not befit the
honor of either of the contracting parties to subrogate to the
American Government in lieu of the Spanish Government anything
respecting the disposition of the funds delivered by the latter to
the Monte de Piedad. The same reasons that induced the Spanish
Government to take over such things would result in great
inconvenience to the American Government in attempting to do so.
The question was such a delicate one, for the reason that it
affected the conscience, deeply religious, of the King of Spain, that
it cannot be believed that it was ever his intention to confide the
exercise thereof to a Government like the American. (U.
S. vs. Arredondo, 6 Pet. [U. S.], 711.)
It is thus seen that the American Government did not subrogate
the Spanish Government or rather, the King of Spain, in this regard;
and as the condition annexed to the donation was lawful and
possible of fulfillment at the time the contract was made, but
became impossible of fulfillment by the cession made by the
Spanish Government in these Islands, compliance therewith is
excused and the contract has been cleared thereof.
Counsel for the defendant, in support of their third assignment of error, say
in their principal brief that:
The Spanish nation was professedly Roman Catholic and its King
enjoyed the distinction of being deputy ex officio of the Holy See
and Apostolic Vicar-General of the Indies, and as such it was his
duty to protect all pious works and charitable institutions in his
kingdoms, especially those of the Indies; among the latter was
the Monte de Piedad of the Philippines, of which said King and his
deputy the Governor-General of the Philippines, as royal vicepatron, were, in a special and peculiar manner, the protectors; the
latter, as a result of the cession of the Philippine Islands, Implicitly
renounced this high office and tacitly returned it to the Holy See,
now represented by the Archbishop of Manila; the national
subscription in question was a kind of foundation or pious work, for
a charitable purpose in these Islands; and the entire subscription
not being needed for its original purpose, the royal vice-patron,
with the consent of the King, gave the surplus thereof to an
analogous purpose; the fulfillment of all these things involved, in
the majority, if not in all cases, faithful compliance with the duty
imposed upon him by the Holy See, when it conferred upon him the
royal patronage of the Indies, a thing that touched him very closely
in his conscience and religion; the cessionary Government though
Christian, was not Roman Catholic and prided itself on its policy of
non-interference in religious matters, and inveterately maintained
a complete separation between the ecclesiastical and civil powers.
189
The contention of counsel, as thus stated, in untenable for two reason, (1)
because such contention is based upon the erroneous theory that the sum
in question was a donation to the Monte de Piedad and not a loan, and (2)
because the charity founded by the donations for the earthquake sufferers
is not and never was intended to be an ecclesiastical pious work. The first
proposition has already been decided adversely to the defendant's
contention. As to the second, the record shows clearly that the fund was
given by the donors for a specific and definite purpose the relief of the
earthquake sufferers and for no other purpose. The money was turned
over to the Spanish Government to be devoted to that purpose. The
Spanish Government remitted the money to the Philippine Government to
be distributed among the suffers. All officials, including the King of Spain
and the Governor-General of the Philippine Islands, who took part in the
disposal of the fund, acted in their purely civil, official capacity, and the
fact that they might have belonged to a certain church had nothing to do
with their acts in this matter. The church, as such, had nothing to do with
the fund in any way whatever until the $80,000 reached the coffers of
the Monte de Piedad (an institution under the control of the church) as a
loan or deposit. If the charity in question had been founded as an
ecclesiastical pious work, the King of Spain and the Governor-General, in
their capacities as vicar-general of the Indies and as royal vice-patron,
respectively, would have disposed of the fund as such and not in their civil
capacities, and such functions could not have been transferred to the
present Philippine Government, because the right to so act would have
arisen out of the special agreement between the Government of Spain and
the Holy See, based on the union of the church and state which was
completely separated with the change of sovereignty.
If "the whole matter is one of trusteeship," and it being true that the
Spanish Government could not, as counsel say, transfer the ownership of
the fund to the Monte de Piedad, the question arises, who may sue to
recover this loan? It needs no argument to show that the Spanish or
Philippine Government, as trustee, could maintain an action for this
purpose had there been no change of sovereignty and if the right of action
has not prescribed. But those governments were something more than
mere common law trustees of the fund. In order to determine their exact
status with reference to this fund, it is necessary to examine the law in
force at the time there transactions took place, which are the law of June
20, 1894, the royal decree of April 27. 1875, and the instructions
promulgated on the latter date. These legal provisions were applicable to
the Philippine Islands (Benedicto vs. De la Rama, 3 Phil. Rep., 34)
The funds collected as a result of the national subscription opened in Spain
by royal order of the Spanish Government and which were remitted to the
Philippine Government to be distributed among the earthquake sufferers
by the Central Relief Board constituted, under article 1 of the law of June
20, 1894, and article 2 of the instructions of April 27, 1875, a special
charity of a temporary nature as distinguished from a permanent public
charitable institution. As the Spanish Government initiated the creation of
the fund and as the donors turned their contributions over to that
Government, it became the duty of the latter, under article 7 of the
instructions, to exercise supervision and control over the moneys thus
collected to the end that the will of the donors should be carried out. The
relief board had no power whatever to dispose of the funds confided to its
charge for other purposes than to distribute them among the sufferers,
because paragraph 3 of article 11 of the instructions conferred the power
upon the secretary of the interior of Spain, and no other, to dispose of the
surplus funds, should there be any, by assigning them to some other
charitable purpose or institution. The secretary could not dispose of any of
the funds in this manner so long as they were necessary for the specific
purpose for which they were contributed. The secretary had the power,
under the law above mentioned to appoint and totally or partially change
the personnel of the relief board and to authorize the board to defend the
rights of the charity in the courts. The authority of the board consisted only
in carrying out the will of the donors as directed by the Government whose
duty it was to watch over the acts of the board and to see that the funds
were applied to the purposes for which they were contributed .The
secretary of the interior, as the representative of His Majesty's
Government, exercised these powers and duties through the GovernorGeneral of the Philippine Islands. The Governments of Spain and of the
Philippine Islands in complying with their duties conferred upon them by
law, acted in their governmental capacities in attempting to carry out the
intention of the contributors. It will this be seen that those governments
were something more, as we have said, than mere trustees of the fund.
And in their supplemental brief counsel say:

By the conceded facts the money in question is part of a charitable
subscription. The donors were persons in Spain, the trustee was
the Spanish Government, the donees, the cestuis que trustent,
were certain persons in the Philippine Islands. The whole matter is
one of trusteeship. This is undisputed and indisputable. It follows
that the Spanish Government at no time was the owner of the
fund. Not being the owner of the fund it couldnot transfer the
ownership. Whether or not it could transfer its trusteeship it
certainly never has expresslydone so and the general terms of
property transfer in the Treaty of Paris are wholly insufficient for
such a purpose even could Spain have transferred its trusteeship
without the consent of the donors and even could the United
States, as a Government, have accepted such a trust under any
power granted to it by the thirteen original States in the
Constitution, which is more than doubtful. It follows further that
this Government is not a proper party to the action. The only
persons who could claim to be damaged by this payment to the
Monte, if it was unlawful, are the donors or the cestuis que
trustent, and this Government is neither.
It is further contended that the obligation on the part of the Monte de

Piedad to return the $80,000 to the Government, even considering it a
190
loan, was wiped out on the change of sovereignty, or inn other words, the
present Philippine Government cannot maintain this action for that reason.
This contention, if true, "must result from settled principles of rigid law," as
it cannot rest upon any title to the fund in the Monte de Piedad acquired
prior to such change. While the obligation to return the $80,000 to the
Spanish Government was still pending, war between the United States and
Spain ensued. Under the Treaty of Paris of December 10, 1898, the
Archipelago, known as the Philippine Islands, was ceded to the United
States, the latter agreeing to pay Spain the sum of $20,000,000. Under the
first paragraph of the eighth article, Spain relinquished to the United States
"all buildings, wharves, barracks, forts, structures, public highways, and
other immovable property which, in conformity with law, belonged to the
public domain, and as such belonged to the crown of Spain." As the
$80,000 were not included therein, it is said that the right to recover this
amount did not, therefore, pass to the present sovereign. This, in our
opinion, does not follow as a necessary consequence, as the right to
recover does not rest upon the proposition that the $80,000 must be "other
immovable property" mentioned in article 8 of the treaty, but upon
contractual obligations incurred before the Philippine Islands were ceded to
the United States. We will not inquire what effect his cession had upon the
law of June 20, 1849, the royal decree of April 27, 1875, and the
instructions promulgated on the latter date. In Vilas vs.Manila (220 U. S.,
345), the court said:
If the above-mentioned legal provisions are in conflict with the political

character, constitution or institutions of the new sovereign, they became
inoperative or lost their force upon the cession of the Philippine Islands to
the United States, but if they are among "that great body of municipal law
which regulates private and domestic rights," they continued in force and
are still in force unless they have been repealed by the present
Government. That they fall within the latter class is clear from their very
nature and character. They are laws which are not political in any sense of
the word. They conferred upon the Spanish Government the right and duty
to supervise, regulate, and to some extent control charities and charitable
institutions. The present sovereign, in exempting "provident institutions,
savings banks, etc.," all of which are in the nature of charitable institutions,
from taxation, placed such institutions, in so far as the investment in
securities are concerned, under the general supervision of the Insular
Treasurer (paragraph 4 of section 111 of Act No. 1189; see also Act No.
701).
Furthermore, upon the cession of the Philippine Islands the prerogatives of
he crown of Spain devolved upon he United States. In Magill vs. Brown (16
Fed. Cas., 408), quoted with approval in Mormon Charch vs. United States
(136 U. S.,1, 57), the court said:
The Revolution devolved on the State all the transcendent power of
Parliament, and the prerogative of the crown, and gave their Acts
the same force and effect.
That there is a total abrogation of the former political relations of

the inhabitants of the ceded region is obvious. That all laws
theretofore in force which are in conflict with the political
character, constitution, or institutions of the substituted sovereign,
lose their force, is also plain. (Alvarez y Sanchez vs. United States,
216 U. S., 167.) But it is equally settled in the same public law that
the great body of municipal law which regulates private and
domestic rights continues in force until abrogated or changed by
the new ruler.
In Fontain vs. Ravenel (17 Hw., 369, 384), Mr. Justice McLean, delivering
the opinion of the court in a charity case, said:
When this country achieved its independence, the prerogatives of
the crown devolved upon the people of the States. And this power
still remains with them except so fact as they have delegated a
portion of it to the Federal Government. The sovereign will is made
known to us by legislative enactment. The State as a sovereign, is
the parens patriae.
Chancelor Kent says:
In this country, the legislature or government of the State,
as parens patriae, has the right to enforce all charities of public
nature, by virtue of its general superintending authority over the
public interests, where no other person is entrusted with it. (4 Kent
Com., 508, note.)
The Supreme Court of the United States in Mormon Church vs. United
States, supra, after approving also the last quotations, said:
191
This prerogative of parens patriae is inherent in the supreme power

of every State, whether that power is lodged in a royal person or in
the legislature, and has no affinity to those arbitrary powers which
are sometimes exerted by irresponsible monarchs to the great
detriment of the people and the destruction of their liberties. On
the contrary, it is a most beneficient functions, and often necessary
to be exercised in the interest of humanity, and for the prevention
of injury to those who cannot protect themselves.
Consequently, the plaintiff is not the proper party to bring the action." The
earthquake fund was the result or the accumulation of a great number of
small contributions. The names of the contributors do not appear in the
record. Their whereabouts are unknown. They parted with the title to their
respective contributions. The beneficiaries, consisting of the original
sufferers and their heirs, could have been ascertained. They are quite
numerous also. And no doubt a large number of the original sufferers have
died, leaving various heirs. It would be impracticable for them to institute
an action or actions either individually or collectively to recover the
$80,000. The only course that can be satisfactorily pursued is for the
Government to again assume control of the fund and devote it to the
object for which it was originally destined.
The court in the same case, after quoting from Sohier vs. Mass. General
Hospital (3 Cush., 483, 497), wherein the latter court held that it is deemed
indispensible that there should be a power in the legislature to authorize
the same of the estates of in facts, idiots, insane persons, and persons not
known, or not in being, who cannot act for themselves, said:
The impracticability of pursuing a different course, however, is not the true

ground upon which the right of the Government to maintain the action
rests. The true ground is that the money being given to a charity became,
in a measure, public property, only applicable, it is true, to the specific
purposes to which it was intended to be devoted, but within those limits
consecrated to the public use, and became part of the public resources for
promoting the happiness and welfare of the Philippine Government.
(Mormon Church vs. U. S., supra.) To deny the Government's right to
maintain this action would be contrary to sound public policy, as tending to
discourage the prompt exercise of similar acts of humanity and Christian
benevolence in like instances in the future.
These remarks in reference to in facts, insane persons and person

not known, or not in being, apply to the beneficiaries of charities,
who are often in capable of vindicating their rights, and justly look
for protection to the sovereign authority, acting as parens patriae.
They show that this beneficient functions has not ceased t exist
under the change of government from a monarchy to a republic;
but that it now resides in the legislative department, ready to be
called into exercise whenever required for the purposes of justice
and right, and is a clearly capable of being exercised in cases of
charities as in any other cases whatever.
As to the question raised in the fourth assignment of error relating to the

constitutionality of Act No. 2109, little need be said for the reason that we
have just held that the present Philippine Government is the proper party
to the action. The Act is only a manifestation on the part of the Philippine
Government to exercise the power or right which it undoubtedly had. The
Act is not, as contended by counsel, in conflict with the fifth section of the
Act of Congress of July 1, 1902, because it does not take property without
due process of law. In fact, the defendant is not the owner of the $80,000,
but holds it as a loan subject to the disposal of the central relief board.
Therefor, there can be nothing in the Act which transcends the power of
the Philippine Legislature.
In People vs. Cogswell (113 Cal. 129, 130), it was urged that the plaintiff
was not the real party in interest; that the Attorney-General had no power
to institute the action; and that there must be an allegation and proof of a
distinct right of the people as a whole, as distinguished from the rights of
individuals, before an action could be brought by the Attorney-General in
the name of the people. The court, in overruling these contentions, held
that it was not only the right but the duty of the Attorney-General to
prosecute the action, which related to charities, and approved the following
quotation from Attorney-General vs. Compton (1 Younge & C. C., 417):
Where property affected by a trust for public purposes is in the
hands of those who hold it devoted to that trust, it is the privilege
of the public that the crown should be entitled to intervene by its
officers for the purpose of asserting, on behalf on the public
generally, the public interest and the public right, which, probably,
no individual could be found effectually to assert, even if the
interest were such as to allow it. (2 Knet's Commentaries, 10th ed.,
359; Lewin on Trusts, sec. 732.)
In Vilas vs. Manila, supra, the plaintiff was a creditor of the city of Manila as
it existed before the cession of the Philippine Islands to the United States
by the Treaty of Paris of December 10, 1898. The action was brought upon
the theory that the city, under its present charter from the Government of
the Philippine Islands, was the same juristic person, and liable upon the
obligations of the old city. This court held that the present municipality is a
totally different corporate entity and in no way liable for the debts of the
Spanish municipality. The Supreme Court of the United States, in reversing
this judgment and in holding the city liable for the old debt, said:
It is further urged, as above indicated, that "the only persons who could
claim to be damaged by this payment to the Monte, if it was unlawful, are
the donors or the cestuis que trustent, and this Government is neither.
192
The juristic identity of the corporation has been in no wise affected,

and, in law, the present city is, in every legal sense, the successor
of the old. As such it is entitled to the property and property rights
of the predecessor corporation, and is, in law, subject to all of its
liabilities.
It is settled beyond doubt or controversy upon the foundation of

the great principle of public policy, applicable to all governments
alike, which forbids that the public interests should be prejudiced
by the negligence of the officers or agents to whose care they are
confided that the United States, asserting rights vested in it as a
sovereign government, is not bound by any statute of limitations,
unless Congress has clearly manifested its intention that it should
be so bound. (Lindsey vs. Miller, 6 Pet. 666; U. S. vs. Knight, 14
Pet., 301; Gibson vs. Chouteau, 13 Wall., 92; U. S. vs. Thompson,
98 U. S., 486; Fink vs. O'Neil, 106 U. S., 272, 281.)
In support of the fifth assignment of error counsel for the defendant argue
that as the Monte de Piedad declined to return the $80,000 when ordered
to do so by the Department of Finance in June, 1893, the plaintiff's right of
action had prescribed at the time this suit was instituted on May 3, 1912,
citing and relying upon article 1961, 1964 and 1969 of the Civil Code.
While on the other hand, the Attorney-General contends that the right of
action had not prescribed (a) because the defense of prescription cannot
be set up against the Philippine Government, (b) because the right of
action to recover a deposit or trust funds does not prescribe, and (c) even
if the defense of prescription could be interposed against the Government
and if the action had, in fact, prescribed, the same was revived by Act No.
2109.
In Gibson vs. Choteau, supra, the court said:

It is a matter of common knowledge that statutes of limitation do
not run against the State. That no laches can be imputed to the
King, and that no time can bar his rights, was the maxim of the
common laws, and was founded on the principle of public policy,
that as he was occupied with the cares of government he ought not
to suffer from the negligence of his officer and servants. The
principle is applicable to all governments, which must necessarily
act through numerous agents, and is essential to a preservation of
the interests and property of the public. It is upon this principle
that in this country the statutes of a State prescribing periods
within which rights must be prosecuted are not held to embrace
the State itself, unless it is expressly designated or the mischiefs to
be remedied are of such a nature that it must necessarily be
included. As legislation of a State can only apply to persons and
thing over which the State has jurisdiction, the United States are
also necessarily excluded from the operation of such statutes.
The material facts relating to this question are these: The Monte de
Piedad received the $80,000 in 1883 "to be held under the same conditions
as at present in the treasury, to wit, at the disposal of the relief board." In
compliance with the provisions of the royal order of December 3, 1892, the
Department of Finance called upon the Monte de Piedadin June, 1893, to
return the $80,000. The Monte declined to comply with this order upon the
ground that only the Governor-General of the Philippine Islands and not the
Department of Finance had the right to order the reimbursement. The
amount was carried on the books of the Monte as a returnable loan until
January 1, 1899, when it was transferred to the account of the "Sagrada
Mitra." On March 31, 1902, the Monte, through its legal representative,
stated in writing that the amount in question was received as a
reimbursable loan, without interest. Act No. 2109 became effective January
30, 1912, and the action was instituted on May 3rd of that year.
In 25 Cyc., 1006, the rule, supported by numerous authorities, is stated as

follows:
In the absence of express statutory provision to the contrary,
statute of limitations do not as a general rule run against the
sovereign or government, whether state or federal. But the rule is
otherwise where the mischiefs to be remedied are of such a nature
that the state must necessarily be included, where the state goes
into business in concert or in competition with her citizens, or
where a party seeks to enforces his private rights by suit in the
name of the state or government, so that the latter is only a
nominal party.
Counsel for the defendant treat the question of prescription as if the action
was one between individuals or corporations wherein the plaintiff is
seeking to recover an ordinary loan. Upon this theory June, 1893, cannot
be taken as the date when the statute of limitations began to run, for the
reason that the defendant acknowledged in writing on March 31, 1902, that
the $80,000 were received as a loan, thereby in effect admitting that it still
owed the amount. (Section 50, Code of Civil Procedure.) But if counsels'
theory is the correct one the action may have prescribed on May 3, 1912,
because more than ten full years had elapsed after March 31, 1902.
(Sections 38 and 43, Code of Civil Procedure.)
In the instant case the Philippine Government is not a mere nominal party
because it, in bringing and prosecuting this action, is exercising its
sovereign functions or powers and is seeking to carry out a trust developed
upon it when the Philippine Islands were ceded to the United States. The
United States having in 1852, purchased as trustee for the Chickasaw
Is the Philippine Government bound by the statute of limitations? The

Supreme Court of the United States in U. S.vs. Nashville, Chattanooga & St.
Louis Railway Co. (118 U. S., 120, 125), said:
193
Indians under treaty with that tribe, certain bonds of the State of
Tennessee, the right of action of the Government on the coupons of such
bonds could not be barred by the statute of limitations of Tennessee, either
while it held them in trust for the Indians, or since it became the owner of
such coupons. (U. S. vs. Nashville, etc., R. Co., supra.) So where lands are
held in trust by the state and the beneficiaries have no right to sue, a
statute does not run against the State's right of action for trespass on the
trust lands. (Greene Tp. vs. Campbell, 16 Ohio St., 11; see also Atty.Gen. vs. Midland R. Co., 3 Ont., 511 [following Reg. vs. Williams, 39 U. C. Q.
B., 397].)
Seno, Mendoza & Associates for plaintiff-appellee.

Emilio Benitez, Jr. for defendant-appellant.
FERNANDO, J.:p
The disputants in this appeal from a question of law from a lower court
decision are the mother and the uncle of a minor beneficiary of the
proceeds of an insurance policy issued on the life of her deceased father.
The dispute centers as to who of them should be entitled to act as trustee
thereof. The lower court applying the appropriate Civil Code provisions
decided in favor of the mother, the plaintiff in this case. Defendant uncle
appealed. As noted, the lower court acted the way it did following the
specific mandate of the law. In addition, it must have taken into account
the principle that in cases of this nature the welfare of the child is the
paramount consideration. It is not an unreasonable assumption that
between a mother and an uncle, the former is likely to lavish more care on
and pay greater attention to her. This is all the more likely considering that
the child is with the mother. There are no circumstances then that did
militate against what conforms to the natural order of things, even if the
language of the law were not as clear. It is not to be lost sight of either that
the judiciary pursuant to its role as an agency of the State as parens
patriae, with an even greater stress on family unity under the present
Constitution, did weigh in the balance the opposing claims and did come to
the conclusion that the welfare of the child called for the mother to be
entrusted with such responsibility. We have to affirm.
These principles being based "upon the foundation of the great principle of
public policy" are, in the very nature of things, applicable to the Philippine
Government.
Counsel in their argument in support of the sixth and last assignments of
error do not question the amount of the judgment nor do they question the
correctness of the judgment in so far as it allows interest, and directs its
payment in gold coin or in the equivalent in Philippine currency.
For the foregoing reasons the judgment appealed from is affirmed, with
costs against the appellant. So ordered.
Torres,
Johnson
Moreland, J., did not sign.
and
Araullo,
JJ.,
concur.
The appealed decision made clear: "There is no controversy as to the facts.

" 1 The insured, Florentino Pilapil had a child, Millian Pilapil, with a married
woman, the plaintiff, Melchora Cabanas. She was ten years old at the time
the complaint was filed on October 10, 1964. The defendant, Francisco
Pilapil, is the brother of the deceased. The deceased insured himself and
instituted as beneficiary, his child, with his brother to act as trustee during
her minority. Upon his death, the proceeds were paid to him. Hence this
complaint by the mother, with whom the child is living, seeking the
delivery of such sum. She filed the bond required by the Civil Code.
Defendant would justify his claim to the retention of the amount in
question by invoking the terms of the insurance policy. 2

SUPREME COURT
Manila
SECOND DIVISION
After trial duly had, the lower court in a decision of May 10, 1965, rendered
judgment ordering the defendant to deliver the proceeds of the policy in
question to plaintiff. Its main reliance was on Articles 320 and 321 of the
Civil Code. The former provides: "The father, or in his absence the mother,
is the legal administrator of the property pertaining to the child under
parental authority. If the property is worth more than two thousand pesos,
the father or mother shall give a bond subject to the approval of the Court
G.R. No. L-25843 July 25, 1974

MELCHORA CABANAS, plaintiff-appellee,
vs.
FRANCISCO PILAPIL, defendant-appellant.
194
of First Instance." 3 The latter states: "The property which the

unemancipated child has acquired or may acquire with his work or
industry, or by any lucrative title, belongs to the child in ownership, and in
usufruct to the father or mother under whom he is under parental authority
and whose company he lives; ...4
aquelia doctrina, y asi se desprende de la sentencia del Tribunal Supremeo

de 30 de diciembre de 1864, que se refiere a la ley 24, tit. XIII de la Partida
5. De la propia suerte aceptan en general dicho principio los Codigos
extranjeros, con las limitaciones y requisitos de que trataremos mis
adelante." 8
Conformity to such explicit codal norm is apparent in this portion of the

appealed decision: "The insurance proceeds belong to the beneficiary. The
beneficiary is a minor under the custody and parental authority of the
plaintiff, her mother. The said minor lives with plaintiff or lives in the
company of the plaintiff. The said minor acquired this property by lucrative
title. Said property, therefore, belongs to the minor child in ownership, and
in usufruct to the plaintiff, her mother. Since under our law the
usufructuary is entitled to possession, the plaintiff is entitled to possession
of the insurance proceeds. The trust, insofar as it is in conflict with the
above quoted provision of law, ispro tanto null and void. In order, however,
to protect the rights of the minor, Millian Pilapil, the plaintiff should file an
additional bond in the guardianship proceedings, Sp. Proc. No. 2418-R of
this Court to raise her bond therein to the total amount of P5,000.00." 5
2. The appealed decision is supported by another cogent consideration. It

is buttressed by its adherence to the concept that the judiciary, as an
agency of the State acting as parens patriae, is called upon whenever a
pending suit of litigation affects one who is a minor to accord priority to his
best interest. It may happen, as it did occur here, that family relations may
press their respective claims. It would be more in consonance not only with
the natural order of things but the tradition of the country for a parent to
be preferred. it could have been different if the conflict were between
father and mother. Such is not the case at all. It is a mother asserting
priority. Certainly the judiciary as the instrumentality of the State in its role
of parens patriae, cannot remain insensible to the validity of her plea. In a
recent case, 9 there is this quotation from an opinion of the United States
Supreme Court: "This prerogative of parens patriae is inherent in the
supreme power of every State, whether that power is lodged in a royal
person or in the legislature, and has no affinity to those arbitrary powers
which are sometimes exerted by irresponsible monarchs to the great
detriment of the people and the destruction of their liberties." What is
more, there is this constitutional provision vitalizing this concept. It reads:
"The State shall strengthen the family as a basic social institution." 10 If, as
the Constitution so wisely dictates, it is the family as a unit that has to be
strengthened, it does not admit of doubt that even if a stronger case were
presented for the uncle, still deference to a constitutional mandate would
have led the lower court to decide as it did.
It is very clear, therefore, considering the above, that unless the

applicability of the two cited Civil Code provisions can be disputed, the
decision must stand. There is no ambiguity in the language employed. The
words are rather clear. Their meaning is unequivocal. Time and time again,
this Court has left no doubt that where codal or statutory norms are cast in
categorical language, the task before it is not one of interpretation but of
application. 6 So it must be in this case. So it was in the appealed decision.
1. It would take more than just two paragraphs as found in the brief for the
defendant-appellant 7 to blunt the force of legal commands that speak so
plainly and so unqualifiedly. Even if it were a question of policy, the
conclusion will remain unaltered. What is paramount, as mentioned at the
outset, is the welfare of the child. It is in consonance with such primordial
end that Articles 320 and 321 have been worded. There is recognition in
the law of the deep ties that bind parent and child. In the event that there
is less than full measure of concern for the offspring, the protection is
supplied by the bond required. With the added circumstance that the child
stays with the mother, not the uncle, without any evidence of lack of
maternal care, the decision arrived at can stand the test of the strictest
scrutiny. It is further fortified by the assumption, both logical and natural,
that infidelity to the trust imposed by the deceased is much less in the
case of a mother than in the case of an uncle. Manresa, commenting on
Article 159 of the Civil Code of Spain, the source of Article 320 of the Civil
Code, was of that view: Thus "El derecho y la obligacion de administrar el
Patrimonio de los hijos es una consecuencia natural y lgica de la patria
potestad y de la presuncin de que nadie cuidar de los bienes de
acqullos con mas cario y solicitude que los padres. En nuestro Derecho
antiguo puede decirse que se hallaba reconocida de una manera indirecta
WHEREFORE, the decision of May 10, 1965 is affirmed. Costs against

defendant-appellant.
Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.
Barredo, J., took no part.
195

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Republic of the Philippines

G.R. No. 122156 February 3, 1997

a. The Highest Bidder must negotiate and

b. The Highest Bidder must execute the

The Highest Bidder will be declared the Winning

The controversy arose when respondent Government Service Insurance

b. Requisite approvals from the GSIS/MHC

Pertinent provisions of the bidding rules prepared by respondent GSIS state

On 17 October 1995, perhaps apprehensive that respondent GSIS has

On 10 September 1996 the instant case was accepted by the Court En

Finally, the prayer for prohibition grounded on grave abuse of discretion

We now resolve. A constitution is a system of fundamental laws for the

founded. The fundamental conception in other words is that it is a supreme

meaningless by simply refusing to pass the needed

Admittedly, some constitutions are merely declarations of policies and

THE PRESIDENT. What is the question of

As against constitutions of the past, modern constitutions have been

MR. RODRIGO. It is just a matter of style.

. . . in case of doubt, the Constitution should be considered

In self-executing constitutional provisions, the legislature may still enact

Respondents also argue that the non-self-executing nature of Sec. 10,

As regards our national patrimony, a member of the 1986 Constitutional

Even the cases cited by respondents holding that certain constitutional

Manila Hotel has become a landmark a living testimonial of Philippine

converted by the Japanese Military Administration into a military

we have to raise a question. Suppose it is a

MR. DAVIDE. Is that the intention?

xxx xxx xxx

THE PRESIDENT. Commissioner Davide is

MR. NOLLEDO. The amendment will read:

xxx xxx xxx

The phrase preference to qualified Filipinos was explained thus

MR. FOZ. Madam President, I would like to

The term "qualified Filipinos" simply means that preference

MR. NOLLEDO. "IN THE GRANT OF RIGHTS,

In the granting of economic rights, privileges, and

Lastly, the word qualified is also determinable. Petitioner was so

MR. NOLLEDO. Obviously.

The penchant to try to whittle away the mandate of the Constitution by

MR. NOLLEDO. The answer is "yes."

Expounding further on the Filipino First Policy provision Commissioner

The executive department has a constitutional duty to

The exchange of views in the sessions of the Constitutional Commission

command. That is not how constitutional government

Respondents further argue that the constitutional provision is addressed to

The argument of respondents that petitioner is now estopped from

Adhering to the doctrine of constitutional supremacy, the subject

Besides, there is no time frame for invoking the constitutional safeguard

Let it be stated for the record once again that while it is no

Nationalism is inherent, in the very concept of the Philippines being a

The Filipino First Policy is a product of Philippine nationalism. It is

As scrupulously as it has tried to observe that it is not its

G.R. No. L-35940 January 22, 1973

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM,

G.R. No. L-35942 January 22, 1973

G.R. No. L-35953 January 22, 1973

Republic of the Philippines

JOSE W. DIOKNO, et al., petitioners,

G.R. No. L-35961 January 22, 1973

G.R. No. L-35925 January 22, 1973

G.R. No. L-35965 January 22, 1973

G.R. No. L-35929 January 22, 1973