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.

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."
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:
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 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 one-half
(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 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].
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:
The parties, through their respective counsels, presented
to this Court for approval the following project of
partition:
COMES NOW, the plaintiffs and the defendant in the
above-entitled case, to this Honorable Court respectfully
submit the following Project of Partition:
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;
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, Anacorita Reyes, Ruperto
Reyes, Adela 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,
Anacorita Reyes, Ruperto Reyes, Adela Reyes and
Priscilla Reyes in equal shares, provided, however that
the remaining portion of Lot No. 3416 shall belong
exclusively to Priscilla Reyes.
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.
(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban
City
(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, therefore, finding the abovequoted 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.
SO ORDERED.
Given in Tacloban City, this 23rd day of October, 1963.
(SGD) ELIAS B. ASUNCION
Judge
EXH. B.
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).
Lot 1184-D was conveyed to Enriqueta D. Anota, a
stenographer in Judge Asuncion's court (Exhs. F, F-1 and V-1),
while Lot 1184-E which had an area of 2,172.5556 sq. meters
was sold on July 31, 1964 to Dr. Arcadio Galapon (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.].
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.).
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 her report dated
May 27, 1971 recommending that respondent Judge should be
reprimanded or warned in connection with the first cause of action
alleged in the complaint, and for the second cause of action,
respondent should be warned in case of a finding that he is
prohibited under the law to engage in business. On the third and
fourth causes of action, Justice Palma recommended that
respondent Judge be exonerated.
The records also reveal that on or about November 9 or 11, 1968
(pp. 481, 477, rec.), complainant herein instituted an action before
the Court of First Instance of Leyte, entitled "Bernardita R.
Macariola, plaintiff, versus Sinforosa R. Bales, et al., defendants,"
which was docketed as Civil Case No. 4235, seeking the
annulment of the project of partition made pursuant to the
decision in Civil Case No. 3010 and the two orders issued by
respondent Judge approving the same, as well as the partition of
the estate and the subsequent conveyances with damages. It
appears, however, that some defendants were dropped from the
civil case. For one, the case against Dr. Arcadio Galapon was
dismissed because he was no longer a real party in interest when
Civil Case No. 4234 was filed, having already conveyed on March
6, 1965 a portion of lot 1184-E to respondent Judge and on August
31, 1966 the remainder was sold to the Traders Manufacturing and
Fishing Industries, Inc. Similarly, the case against defendant
Victoria Asuncion was dismissed on the ground that she was no
longer a real party in interest at the time the aforesaid Civil Case
No. 4234 was filed as the portion of Lot 1184 acquired by her and
respondent Judge from Dr. Arcadio Galapon was already sold on
August 31, 1966 to the Traders Manufacturing and Fishing
industries, Inc. Likewise, the cases against defendants Serafin P.
Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders
Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and
Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla, Salvador
Anota and Enriqueta Anota and Atty. Zotico A. Tolete were
dismissed with the conformity of complainant herein, plaintiff
therein, and her counsel.
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:
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;
(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;
(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.
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.
D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO

(1) Dismissing the complaint against Bonifacio Ramo;

(2) Directing the plaintiff to pay the defendant Bonifacio
Ramo the cost of the suit.
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.
I
WE find that there is no merit in the contention of complainant
Bernardita R. Macariola, under her first cause of action, that
respondent Judge Elias B. Asuncion violated Article 1491,
paragraph 5, of the New Civil Code in acquiring by purchase a
portion of Lot No. 1184-E which was one of those properties
involved in Civil Case No. 3010. 'That Article provides:
Article 1491. The following persons cannot acquire by
purchase, even at a public or judicial action, either in person
or through the mediation of another:
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of superior
and inferior courts, and other officers and employees
connected with the administration of justice, the property and
rights in litigation or levied upon an execution before the
court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of
acquiring by assignment and shall apply to lawyers, with
respect to the property and rights which may be the object of
any litigation in which they may take part by virtue of their
profession [emphasis supplied].
The 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]).
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 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 dated November 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.
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.
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 subsequent filing on November 9, or 11, 1968 of Civil Case
No. 4234 can no longer alter, change or affect the aforesaid facts
that the questioned sale to respondent Judge, now Court of
Appeals Justice, was effected and consummated long after the
finality of the aforesaid decision or orders.
Consequently, the sale of a portion of Lot 1184-E to respondent
Judge having taken place over one year after the finality of the
decision in Civil Case No. 3010 as well as the two orders approving
the project of partition, and not during the pendency of the
litigation, there was no violation of paragraph 5, Article 1491 of
the New Civil Code.
It is also argued by complainant herein that the sale on July 31,
1964 of Lot 1184-E to Dr. Arcadio Galapon by Priscilla Reyes, Adela
Reyes and Luz R. Bakunawa was only a mere scheme to conceal
the illegal and unethical transfer of said lot to respondent Judge as
a consideration for the approval of the project of partition. In this
connection, We agree with the findings of the Investigating Justice
thus:
And so we are now confronted with this all-important
question whether or not the acquisition by respondent of a
portion of Lot 1184-E and the subsequent transfer of the
whole lot to "TRADERS" of which respondent was the
President and his wife the Secretary, was intimately related
to the Order of respondent approving the project of partition,
Exh. A.
Respondent vehemently denies any interest or participation
in the transactions between the Reyeses and the Galapons
concerning Lot 1184-E, and he insists that there is no
evidence whatsoever to show that Dr. Galapon had acted, in
the purchase of Lot 1184-E, in mediation for him and his wife.
(See p. 14 of Respondent's Memorandum).
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.).
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:

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 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:
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);
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 onefourth 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).
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.
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 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.
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.).
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 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:
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.
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.
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.
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.
Upon the transfer of sovereignty from Spain to the United States
and later on from the United States to the Republic of the
Philippines, Article 14 of this Code of Commerce must be deemed
to have been abrogated because where there is change of

sovereignty, the political laws of the former sovereign, whether

compatible or not with those of the new sovereign, are
automatically abrogated, unless they are expressly re-enacted by
affirmative act of the new sovereign.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330,
311 [1912]) that:
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).
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:
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 newlycreated power of the State.
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. "
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.
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:
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:
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.
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]).
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.
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.
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.
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.
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.
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.
And under Sections 5, 6 and 7, Article X of the 1973 Constitution,
only the Supreme Court can discipline judges of inferior courts as
well as other personnel of the Judiciary.
It is true that under Section 33 of the Civil Service Act of 1959:
"The Commissioner may, for ... violation of the existing Civil
Service Law and rules or of reasonable office regulations, or in the
interest of the service, remove any subordinate officer or
employee from the service, demote him in rank, suspend him for
not more than one year without pay or fine him in an amount not
exceeding six months' salary." Thus, a violation of Section 12 of
Rule XVIII is a ground for disciplinary action against civil service
officers and employees.
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.
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]).
Although the actuation of respondent Judge in engaging in private
business by joining the Traders Manufacturing and Fishing
Industries, Inc. as a 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:
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. ...
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
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 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.
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.
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.).
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 member of the
Judiciary must not only be characterized with propriety but must
always be above suspicion.
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE
COURT OF APPEALS IS HEREBY REMINDED TO BE MORE DISCREET
IN HIS PRIVATE AND BUSINESS ACTIVITIES.
SO ORDERED.

G.R. No. L-44640 October 12, 1976

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner,

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

matter for any reason that in his judgment requires immediate

action, he may, in order to meet the exigency, issue the necessary
decrees, orders or letters of instructions, which shall form part of
the law of the land.
7. The barangays and sanggunians shall continue as presently
constituted but their functions, powers, and composition may be
altered by law.
Referenda conducted thru the barangays and under the
Supervision of the Commission on Elections may be called at any
time the government deems it necessary to ascertain the will of
the people regarding any important matter whether of national or
local interest.
8. All provisions of this Constitution not inconsistent with any of
these amendments shall continue in full force and effect.
9. These amendments shall take effect after the incumbent
President shall have proclaimed that they have been ratified by I
majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive
supervision and control of the October 1976 National ReferendumPlebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V.
SANIDAD, father and son, commenced L-44640 for Prohibition with
Preliminary Injunction seeking to enjoin the Commission on
Elections from holding and conducting the Referendum Plebiscite
on October 16; to declare without force and effect Presidential
Decree Nos. 991 and 1033, insofar as they propose amendments
to the Constitution, as well as Presidential Decree No. 1031,
insofar as it directs the Commission on Elections to supervise,
control, hold, and conduct the Referendum-Plebiscite scheduled
on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions
there is no grant to the incumbent President to exercise the
constituent power to propose amendments to the new
Constitution. As a consequence, the Referendum-Plebiscite on
October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for
respondent Commission on Elections, The Solicitor General
principally maintains that petitioners have no standing to sue; the
issue raised is political in nature, beyond judicial cognizance of
this Court; at this state of the transition period, only the
incumbent President has the authority to exercise constituent
power; the referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with
Preliminary Injunction, docketed as L-44684, was instituted by
VICENTE M. GUZMAN, a delegate to the 1971 Constitutional
Convention, asserting that the power to propose amendments to,
or revision of the Constitution during the transition period is
expressly conferred on the interim National Assembly under
Section 16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was
filed on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR.,
and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the
implementation of Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative
powers under Martial Law, the incumbent President cannot act as
a constituent assembly to propose amendments to the
Constitution; a referendum-plebiscite is untenable under the
Constitutions of 1935 and 1973; the submission of the proposed
amendments in such a short period of time for deliberation
renders the plebiscite a nullity; to lift Martial Law, the President
need not consult the people via referendum; and allowing 15-.year
olds to vote would amount to an amendment of the Constitution,
which confines the right of suffrage to those citizens of the
Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of
merit.
I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus
standi to challenge the constitutional premise of Presidential
Decree Nos. 991, 1031, and 1033. It is now an ancient rule that
the valid source of a stature Presidential Decrees are of such
nature-may be contested by one who will sustain a direct injuries
as a in result of its enforcement. At the instance of taxpayers, laws
providing for the disbursement of public funds may be enjoined,
upon the theory that the expenditure of public funds by an officer
of the State for the purpose of executing an unconstitutional act
constitutes a misapplication of such funds. 4 The breadth of
Presidential Decree No. 991 carries all appropriation of Five Million
Pesos for the effective implementation of its purposes. 5
Presidential Decree No. 1031 appropriates the sum of Eight Million
Pesos to carry out its provisions. 6 The interest of the aforenamed
petitioners as taxpayers in the lawful expenditure of these
amounts of public money sufficiently clothes them with that
personality to litigate the validity of the Decrees appropriating
said funds. Moreover, as regards taxpayer's suits, this Court
enjoys that open discretion to entertain the same or not. 7 For the
present case, We deem it sound to exercise that discretion
affirmatively so that the authority upon which the disputed
Decrees are predicated may be inquired into.

2. The Solicitor General would consider the question at bar as a

pure political one, lying outside the domain of judicial review. We
disagree. The amending process both as to proposal and
ratification, raises a judicial question. 8 This is especially true in
cases where the power of the Presidency to initiate the of
normally exercised by the legislature, is seriously doubted. Under
the terms of the 1973 Constitution, the power to propose
amendments o the constitution resides in the interim National
Assembly in the period of transition (See. 15, Transitory
provisions). After that period, and the regular National Assembly in
its active session, the power to propose amendments becomes
ipso facto the prerogative of the regular National Assembly (Sec.
1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course
has not been followed. Rather than calling the National Assembly
to constitute itself into a constituent assembly the incumbent
President undertook the proposal of amendments and submitted
the proposed amendments thru Presidential Decree 1033 to the
people in a Referendum-Plebiscite on October 16. Unavoidably,
the regularity regularity of the procedure for amendments, written
in lambent words in the very Constitution sought to be amended,
raises a contestable issue. The implementing Presidential Decree
Nos. 991, 1031, and 1033, which commonly purport to have the
force and effect of legislation are assailed as invalid, thus the
issue of the validity of said Decrees is plainly a justiciable one,
within the competence of this Court to pass upon. Section 2 (2),
Article X of the new Constitution provides: "All cases involving the
constitutionality of a treaty, executive agreement, or law may
shall be heard and decided by the Supreme Court en banc and no
treaty, executive agreement, or law may be declared
unconstitutional without the concurrence of at least ten
Members. ..." The Supreme Court has the last word in the
construction not only of treaties and statutes, but also of the
Constitution itself The amending, like all other powers organized in
the Constitution, is in form a delegated and hence a limited
power, so that the Supreme Court is vested with that authorities
to determine whether that power has been discharged within its
limits.
Political questions are neatly associated with the wisdom, of the
legality of a particular act. Where the vortex of the controversy
refers to the legality or validity of the contested act, that matter is
definitely justiciable or non-political. What is in the heels of the
Court is not the wisdom of the act of the incumbent President in
proposing amendments to the Constitution, but his constitutional
authority to perform such act or to assume the power of a
constituent assembly. Whether the amending process confers on
the President that power to propose amendments is therefore a
downright justiciable question. Should the contrary be found, the
actuation of the President would merely be a brutum fulmen. If the
Constitution provides how it may be amended, the judiciary as the
interpreter of that Constitution, can declare whether the
procedure followed or the authority assumed was valid or not. 10
We cannot accept the view of the Solicitor General, in pursuing his
theory of non-justiciability, that the question of the President's
authority to propose amendments and the regularity of the
procedure adopted for submission of the proposal to the people
ultimately lie in the judgment of the A clear Descartes fallacy
of vicious circle. Is it not that the people themselves, by their
sovereign act, provided for the authority and procedure for the
amending process when they ratified the present Constitution in
1973? Whether, therefore, the constitutional provision has been
followed or not is the proper subject of inquiry, not by the people
themselves of course who exercise no power of judicial but by the
Supreme Court in whom the people themselves vested that
power, a power which includes the competence to determine
whether the constitutional norms for amendments have been
observed or not. And, this inquiry must be done a prior not a
posterior i.e., before the submission to and ratification by the
people.
Indeed, the precedents evolved by the Court or, prior
constitutional cases underline the preference of the Court's
majority to treat such issue of Presidential role in the amending
process as one of non-political impression. In the Plebiscite
Cases, 11 the contention of the Solicitor General that the issue on
the legality of Presidential Decree No. 73 "submitting to the
Pilipino people (on January 15, 1973) for ratification or rejection
the Constitution of the Republic of the Philippines proposed by the
1971 Constitutional Convention and appropriating fund s therefore
"is a political one, was rejected and the Court unanimously
considered the issue as justiciable in nature. Subsequently in the
Ratification Cases 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 dismissed, the Court ruled that the question raised is
justiciable. Chief Justice Concepcion, expressing the majority view,
said, Thus, in the aforementioned plebiscite cases, We rejected
the theory of the respondents therein that the question whether
Presidential Decree No. 73 calling a plebiscite to be held on
January 15, 1973, for the ratification or rejection of the proposed
new Constitution, was valid or not, was not a proper subject of
judicial inquiry because, they claimed, it partook of a political
nature, and We unanimously declared that the issue was a
justiciable one. With Identical unanimity. We overruled the
respondent's contention in the 1971 habeas corpus cases,
questioning Our authority to determine the constitutional
sufficiency of the factual bases of the Presidential proclamation

suspending the privilege of the writ of habeas corpus on August

21, 1971, despite the opposite view taken by this Court in
Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it
adhered to the former case, which view We, accordingly,
abandoned and refused to apply. For the same reason, We did not
apply and expressly modified, in Gonzales vs. Commission on
Elections, the political-question theory adopted in Mabanag vs.
Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs.
Lopez Vito, urged by the Solicitor General, was decisively refused
by the Court. Chief Justice Concepcion continued: "The reasons
adduced in support thereof are, however, substantially the same
as those given in support on the political question theory
advanced in said habeas corpus and plebiscite cases, which were
carefully considered by this Court and found by it to be legally
unsound and constitutionally untenable. As a consequence. Our
decisions in the aforementioned habeas corpus cases partakes of
the nature and effect of a stare decisis which gained added weight
by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this
Constitution may be proposed by the National Assembly upon
a vote of three-fourths of all its Members, or by a
constitutional convention. (2) The National Assembly may, by
a vote of two-thirds of all its Members, call a constitutional
convention or, by a majority vote of all its Members, submit
the question of calling such a convention to the electorate in
an election.
SECTION 2. Any amendment to, or revision of, this
Constitution shall be valid when ratified by a majority of the
votes cast in a plebiscite which shall be held not later than
three months after the approval of such amendment or
revision.
In the present period of transition, the interim National Assembly
instituted in the Transitory Provisions is conferred with that
amending power. Section 15 of the Transitory Provisions reads:
SECTION 15. The interim National Assembly, upon special call
by the interim Prime Minister, may, by a majority vote of all
its Members, propose amendments to this Constitution. Such
amendments shall take effect when ratified in accordance
with Article Sixteen hereof.
There are, therefore, two periods contemplated in the
constitutional life of the nation, i.e., period of normalcy and period
of transition. In times of normally, the amending process may be
initiated by the proposals of the (1) regular National Assembly
upon a vote of three-fourths of all its members; or (2) by a
Constitutional Convention called by a vote of two-thirds of all the
Members of the National Assembly. However the calling of a
Constitutional Convention may be submitted to the electorate in
an election voted upon by a majority vote of all the members of
the National Assembly. In times of transition, amendments may be
proposed by a majority vote of all the Members of the National
Assembly upon special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the
incumbent President is vested with that prerogative of discretion
as to when he shall initially convene the interim National
Assembly. Speaking for the majority opinion in that case, Justice
Makasiar said: "The Constitutional Convention intended to leave to
the President the determination of the time when he shall initially
convene the interim National Assembly, consistent with the
prevailing conditions of peace and order in the country."
Concurring, Justice Fernandez, himself a member of that
Constitutional Convention, revealed: "(W)hen the Delegates to the
Constitutional Convention voted on the Transitory Provisions, they
were aware of the fact that under the same, the incumbent
President was given the discretion as to when he could convene
the interim National Assembly; it was so stated plainly by the
sponsor, Delegate Yaneza; as a matter of fact, the proposal that it
be convened 'immediately', made by Delegate Pimentel (V) was
rejected. The President's decision to defer the convening of the
interim National Assembly soon found support from the people
themselves. In the plebiscite of January 10-15, 1973, at which the
ratification of the 1973 Constitution was submitted, the people
voted against the convening of the interim National Assembly. In
the referendum of July 24, 1973, the Citizens Assemblies
("bagangays") reiterated their sovereign will to withhold the
convening of the interim National Assembly. Again, in the
referendum of February 27, 1975, the proposed question of
whether the interim National Assembly shall be initially convened
was eliminated, because some of the members of Congress and
delegates of the Constitutional Convention, who were deemed
automatically members of the I interim National Assembly, were
against its inclusion since in that referendum of January, 1973, the
people had already resolved against it.
3. In sensu strictiore, when the legislative arm of the state
undertakes the proposals of amendment to a Constitution, that
body is not in the usual function of lawmaking. lt is not legislating
when engaged in the amending process.16 Rather, it is exercising
a peculiar power bestowed upon it by the fundamental charter
itself. In the Philippines, that power is provided for in Article XVI of
the 1973 Constitution (for the regular National Assembly) or in
Section 15 of the Transitory Provisions (for the National Assembly).

While ordinarily it is the business of the legislating body to

legislate for the nation by virtue of constitutional conferment
amending of the Constitution is not legislative in character. In
political science a distinction is made between constitutional
content of an organic character and that of a legislative
character'. The distinction, however, is one of policy, not of
law. 17Such being the case, approval of the President of any
proposed amendment is a misnomer 18 The prerogative of the
President to approve or disapprove applies only to the ordinary
cases of legislation. The President has nothing to do with
proposition or adoption of amendments to the Constitution. 19
III
Concentration of Powers in the President during crisis government.
1. In general, the governmental powers in crisis government the
Philippines is a crisis government today are more or less
concentrated in the President. 20 According to Rossiter, "(t)he
concentration of government power in a democracy faced by an
emergency is a corrective to the crisis inefficiencies inherent in
the doctrine of the separation of powers. In most free states it has
generally been regarded as imperative that the total power of the
government be parceled out among three mutually independent
branches executive, legislature, and judiciary. It is believed to be
destructive of constitutionalism if any one branch should exercise
any two or more types of power, and certainly a total disregard of
the separation of powers is, as Madison wrote in the Federalist,
No. 47, 'the very definition of tyranny.' In normal times the
separation of powers forms a distinct obstruction to arbitrary
governmental action. By this same token, in abnormal times it
may form an insurmountable barrier to a decisive emergency
action in behalf of the state and its independent existence. There
are moments in the life of any government when all powers must
work together in unanimity of purpose and action, even if this
means the temporary union of executive, legislative, and judicial
power in the hands of one man. The more complete the
separation of powers in a constitutional system, the more difficult
and yet the more necessary will be their fusion in time of crisis.
This is evident in a comparison of the crisis potentialities of the
cabinet and presidential systems of government. In the former the
all-important harmony of legislature and executive is taken for
granted; in the latter it is neither guaranteed nor to be to
confidently expected. As a result, cabinet is more easily
established and more trustworthy than presidential dictatorship.
The power of the state in crisis must not only be concentrated and
expanded; it must also be freed from the normal system of
constitutional and legal limitations. 21 John Locke, on the other
hand, claims for the executive in its own right a broad discretion
capable even of setting aside the ordinary laws in the meeting of
special exigencies for which the legislative power had not
provided. 22 The rationale behind such broad emergency powers of
the Executive is the release of the government from "the paralysis
of constitutional restrains" so that the crisis may be ended and
normal times restored.
2. The presidential exercise of legislative powers in time of martial
law is now a conceded valid at. That sun clear authority of the
President is saddled on Section 3 (pars. 1 and 2) of the Transitory
Provisions, thus: 23
The incumbent President of the Philippines shall initially
convene the interim National Assembly and shall preside over
its sessions until the interim Speaker shall have been elected.
He shall continue to exercise his powers and prerogatives
under the nineteen hundred and thirty-five Constitution and
the powers vested in the President and the Prime Minister
under this Constitution until the calls upon the interim
National Assembly to elect the interim President and the
interim Prime Minister, who shall then exercise their
respective powers vested by this Constitution.
All proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President
shall be part of the law of the land, and shall remain valid,
binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or
superseded by subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent President, or
unless expressly and explicitly modified or repealed by the
regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional
Convention delegate, "that the Constitutional Convention, while
giving to the President the discretion when to call the interim
National Assembly to session, and knowing that it may not be
convened soon, would create a vacuum in the exercise of
legislative powers. Otherwise, with no one to exercise the
lawmaking powers, there would be paralyzation of the entire
governmental machinery." 24 Paraphrasing Rossiter, this is an
extremely important factor in any constitutional dictatorship which
extends over a period of time. The separation of executive and
legislature ordained in the Constitution presents a distinct
obstruction to efficient crisis government. The steady increase in
executive power is not too much a cause for as the steady
increase in the magnitude and complexity of the problems the
President has been called upon by the Filipino people to solve in
their behalf, which involve rebellion, subversion, secession,
recession, inflation, and economic crisis-a crisis greater than war.
In short, while conventional constitutional law just confines the
President's power as Commander-in-Chief to the direction of the
operation of the national forces, yet the facts of our political,

social, and economic disturbances had convincingly shown that in

meeting the same, indefinite power should be attributed to tile
President to take emergency measures 25
IV
Authority of the incumbent President t to propose amendments to
the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally
consigned to the interim National Assembly during the transition
period. However, the initial convening of that Assembly is a
matter fully addressed to the judgment of the incumbent
President. And, in the exercise of that judgment, the President
opted to defer convening of that body in utter recognition of the
people's preference. Likewise, in the period of transition, the
power to propose amendments to the Constitution lies in the
interim National Assembly upon special call by the President (See.
15 of the Transitory Provisions). Again, harking to the dictates of
the sovereign will, the President decided not to call the interim
National Assembly. Would it then be within the bounds of the
Constitution and of law for the President to assume that
constituent power of the interim Assembly vis-a-vis his
assumption of that body's legislative functions? The answer is yes.
If the President has been legitimately discharging the legislative
functions of the interim Assembly, there is no reason why he
cannot validly discharge the function of that Assembly to propose
amendments to the Constitution, which is but adjunct, although
peculiar, to its gross legislative power. This, of course, is not to say
that the President has converted his office into a constituent
assembly of that nature normally constituted by the legislature.
Rather, with the interim National Assembly not convened and only
the Presidency and the Supreme Court in operation, the urges of
absolute necessity render it imperative upon the President to act
as agent for and in behalf of the people to propose amendments
to the Constitution. Parenthetically, by its very constitution, the
Supreme Court possesses no capacity to propose amendments
without constitutional infractions. For the President to shy away
from that actuality and decline to undertake the amending
process would leave the governmental machineries at a stalemate
or create in the powers of the State a destructive vacuum, thereby
impeding the objective of a crisis government "to end the crisis
and restore normal times." In these parlous times, that
Presidential initiative to reduce into concrete forms the constant
voices of the people reigns supreme. After all, constituent
assemblies or constitutional conventions, like the President now,
are mere agents of the people .26
2. The President's action is not a unilateral move. As early as the
referendums of January 1973 and February 1975, the people had
already rejected the calling of the interim National Assembly. The
Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian,
the Pambansang Katipunan ng mga Barangay, and the
Pambansang Katipunan ng mga Barangay, representing 42,000
barangays, about the same number of Kabataang Barangay
organizations, Sanggunians in 1,458 municipalities, 72 provinces,
3 sub-provinces, and 60 cities had informed the President that the
prevailing sentiment of the people is for the abolition of the
interim National Assembly. Other issues concerned the lifting of
martial law and amendments to the Constitution .27 The national
organizations of Sangguniang Bayan presently proposed to settle
the issues of martial law, the interim Assembly, its replacement,
the period of its existence, the length of the period for the
exercise by the President of its present powers in a referendum to
be held on October 16 . 28 The Batasang Bayan (legislative council)
created under Presidential Decree 995 of September 10, 1976,
composed of 19 cabinet members, 9 officials with cabinet rank, 91
members of the Lupong Tagapagpaganap (executive committee)
of the Katipunan ng mga Sangguniang Bayan voted in session to
submit directly to the people in a plebiscite on October 16, the
previously quoted proposed amendments to the Constitution,
including the issue of martial law .29 Similarly, the "barangays"
and the "sanggunians" endorsed to the President the submission
of the proposed amendments to the people on October 16. All the
foregoing led the President to initiate the proposal of amendments
to the Constitution and the subsequent issuance of Presidential
Decree No, 1033 on September 22, 1976 submitting the questions
(proposed amendments) to the people in the National
Referendum-Plebiscite on October 16.
V
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary
state is easily seen. In the Philippines, a republican and unitary
state, sovereignty "resides in the people and all government
authority emanates from them.30 In its fourth meaning, Savigny
would treat people as "that particular organized assembly of
individuals in which, according to the Constitution, the highest
power exists." 31 This is the concept of popular sovereignty. It
means that the constitutional legislator, namely the people, is
sovereign 32 In consequence, the people may thus write into the
Constitution their convictions on any subject they choose in the
absence of express constitutional prohibition. 33 This is because,
as Holmes said, the Constitution "is an experiment, as all life is all
experiment." 34 "The necessities of orderly government," wrote
Rottschaefer, "do not require that one generation should be
permitted to permanently fetter all future generations." A
constitution is based, therefore, upon a self-limiting decision of the
people when they adopt it. 35

2. The October 16 referendum-plebiscite is a resounding call to

the people to exercise their sovereign power as constitutional
legislator. The proposed amendments, as earlier discussed,
proceed not from the thinking of a single man. Rather, they are
the collated thoughts of the sovereign will reduced only into
enabling forms by the authority who can presently exercise the
powers of the government. In equal vein, the submission of those
proposed amendments and the question of martial law in a
referendum-plebiscite expresses but the option of the people
themselves implemented only by the authority of the President.
Indeed, it may well be said that the amending process is a
sovereign act, although the authority to initiate the same and the
procedure to be followed reside somehow in a particular body.
VI
Referendum-Plebiscite not rendered nugatory by the participation
of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The
question - (1) Do you want martial law to be continued? - is a
referendum question, wherein the 15-year olds may participate.
This was prompted by the desire of the Government to reach the
larger mas of the people so that their true pulse may be felt to
guide the President in pursuing his program for a New Order. For
the succeeding question on the proposed amendments, only those
of voting age of 18 years may participate. This is the plebiscite
aspect, as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes
of those 18 years old and above which will have valid bearing on
the results. The fact that the voting populace are simultaneously
asked to answer the referendum question and the plebiscite
question does not infirm the referendum-plebiscite. There is
nothing objectionable in consulting the people on a given issue,
which is of current one and submitting to them for ratification of
proposed constitutional amendments. The fear of commingled
votes (15-year olds and 18-year olds above) is readily dispelled by
the provision of two ballot boxes for every barangay center, one
containing the ballots of voters fifteen years of age and under
eighteen, and another containing the ballots of voters eighteen
years of age and above. 37 The ballots in the ballot box for voters
fifteen years of age and under eighteen shall be counted ahead of
the ballots of voters eighteen years and above contained in
another ballot box. And, the results of the referendum-plebiscite
shall be separately prepared for the age groupings, i.e., ballots
contained in each of the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a
"plebiscite." A "referendum" is merely consultative in character. It
is simply a means of assessing public reaction to the given issues
submitted to the people foe their consideration, the calling of
which is derived from or within the totality of the executive power
of the President. 39It is participated in by all citizens from the age
of fifteen, regardless of whether or not they are illiterates, feebleminded, or ex- convicts . 40 A "plebiscite," on the other hand,
involves the constituent act of those "citizens of the Philippines
not otherwise disqualified by law, who are eighteen years of age
or over, and who shall have resided in the Philippines for at least
one year and in the place wherein they propose to vote for at
least six months preceding the election Literacy, property or any
other substantive requirement is not imposed. It is generally
associated with the amending process of the Constitution, more
particularly, the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime
of martial law stultifies in main the freedom to dissent. That
speaks of a bygone fear. The martial law regime which, in the
observation of Justice Fernando, 41 is impressed with a mild
character recorded no State imposition for a muffled voice. To be
sure, there are restraints of the individual liberty, but on certain
grounds no total suppression of that liberty is aimed at. The for
the referendum-plebiscite on October 16 recognizes all the
embracing freedoms of expression and assembly The President
himself had announced that he would not countenance any
suppression of dissenting views on the issues, as he is not
interested in winning a "yes" or "no" vote, but on the genuine
sentiment of the people on the issues at hand. 42 Thus, the
dissenters soon found their way to the public forums, voicing out
loud and clear their adverse views on the proposed amendments
and even (in the valid ratification of the 1973 Constitution, which
is already a settled matter. 43 Even government employees have
been held by the Civil Service Commission free to participate in
public discussion and even campaign for their stand on the
referendum-plebiscite issues. 44
VIII
Time for deliberation is not short.
1. The period from September 21 to October 16 or a period of 3
weeks is not too short for free debates or discussions on the
referendum-plebiscite issues. The questions are not new. They are
the issues of the day. The people have been living with them since
the proclamation of martial law four years ago. The referendums
of 1973 and 1975 carried the same issue of martial law. That
notwithstanding, the contested brief period for discussion is not
without counterparts in previous plebiscites for constitutional
amendments. Justice Makasiar, in the Referendum Case, recalls:
"Under the old Society, 15 days were allotted for the publication in
three consecutive issues of the Official Gazette of the women's
suffrage amendment to the Constitution before the scheduled
plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional

amendment to append as ordinance the complicated TydingsKocialskowski was published in only three consecutive issues of
the Official Gazette for 10 days prior to the scheduled plebiscite
(Com. Act 492). For the 1940 Constitutional amendments
providing for the bicameral Congress, the reelection of the
President and Vice President, and the creation of the Commission
on Elections, 20 days of publication in three consecutive issues of
the Official Gazette was fixed (Com Act No. 517). And the Parity
Amendment, an involved constitutional amendment affecting the
economy as well as the independence of the Republic was
publicized in three consecutive issues of the Official Gazette for 20
days prior to the plebiscite (Rep. Act No. 73)." 45
2. It is worthy to note that Article XVI of the Constitution makes no
provision as to the specific date when the plebiscite shall be held,
but simply states that it "shall be held not later than three months
after the approval of such amendment or revision." In Coleman v.
Miller, 46 the United States Supreme court held that this matter of
submission involves "an appraisal of a great variety of relevant
conditions, political, social and economic," which "are essentially
political and not justiciable." The constituent body or in the instant
cases, the President, may fix the time within which the people
may act. This is because proposal and ratification are not treated
as unrelated acts, but as succeeding steps in a single endeavor,
the natural inference being that they are not to be widely
separated in time; second, it is only when there is deemed to be a
necessity therefor that amendments are to be proposed, the
reasonable implication being that when proposed, they are to be
considered and disposed of presently, and third, ratification is but
the expression of the approbation of the people, hence, it must be
done contemporaneously. 47 In the words of Jameson, "(a)n
alteration of the Constitution proposed today has relation to the
sentiment and the felt needs of today, and that, if not ratified
early while that sentiment may fairly be supposed to exist. it
ought to be regarded as waived, and not again to be voted upon,
unless a second time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees
Nos. 991, 1031 and 1033 political or justiciable?
2. During the present stage of the transition period, and under,
the environmental circumstances now obtaining, does the
President possess power to propose amendments to the
Constitution as well as set up the required machinery and
prescribe the procedure for the ratification of his proposals by the
people?
3. Is the submission to the people of the proposed amendments
within the time frame allowed therefor a sufficient and proper
submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate
Justices Enrique M. Fernando, Claudio Teehankee, Antonio P.
Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and
Ruperto G. Martin are of the view that the question posed is
justiciable, while Associate Justices Felix V. Makasiar, Felix Q.
Antonio and Ramon C. Aquino hold the view that the question is
political.
Upon the second issue, Chief Justice Castro and Associate Justices
Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin
voted in the affirmative, while Associate Justices Teehankee and
Munoz Palma voted in the negative. Associate Justice Fernando,
conformably to his concurring and dissenting opinion in Aquino vs.
Enrile (59 SCRA 183), specifically dissents from the proposition
that there is concentration of powers in the Executive during
periods of crisis, thus raising serious doubts as to the power of the
President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices
Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the
view that there is a sufficient and proper submission of the
proposed amendments for ratification by the people. Associate
Justices Barredo and Makasiar expressed the hope, however that
the period of time may be extended. Associate Justices Fernando,
Makasiar and Antonio are of the view that the question is political
and therefore beyond the competence and cognizance of this
Court, Associate Justice Fernando adheres to his concurrence in
the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC
(21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma
hold that prescinding from the President's lack of authority to
exercise the constituent power to propose the amendments, etc.,
as above stated, there is no fair and proper submission with
sufficient information and time to assure intelligent consent or
rejection under the standards set by this Court in the controlling
cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA
702).
Chief Justice Castro and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss the
three petitions at bar. For reasons as expressed in his separate
opinion, Associate Justice Fernando concurs in the result.
Associate Justices Teehankee and Munoz Palma voted to grant the
petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions
are hereby dismissed. This decision is immediately executory.
SO ORDERED.

G.R. No. L-35546 September 17, 1974

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
BENIGNO S. AQUINO, JR., RAMON MITRA, JR., FRANCISCO
RODRIGO, AND NAPOLEON RAMA, petitioners,
vs.
HON JUAN PONCE ENRILE, SECRETARY OF NATIONAL
DEFENSE; GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES; AND GEN. FIDEL V. RAMOS,
CHIEF, PHILIPPINE CONSTABULARY, respondents.

ARMED FORCES OF THE PHILIPPINES: AND BRIG. GEN.

FIDEL V. RAMOS, CHIEF OF THE PHILIPPINE
CONSTABULARY, respondents.
G.R. No. L-35573 September 17, 1974
ERNESTO RONDON, petitioner,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL
DEFENSE; GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE
CONSTABULARY; AND MAJOR RODULFO MIANA, respondents.

G.R. No. L-35538 September 17, 1974

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
JOAQUIN P. ROCES, TEODORO M. LOCSIN, SR., ROLANDO
FADUL, ROSALINA GALANG, GO ENG GUAN, MAXIMO V.
SOLIVEN, RENATO CONSTANTINO, AND LUIS R.
MAURICIO, petitioners,
vs.
THE SECRETARY OF NATIONAL DEFENSE; THE CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES; THE CHIEF,
PHILIPPINE CONSTABULARY, et al., respondents.
G.R. No. L-35539 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
JOSE W. DIOKNO, CARMEN I. DIOKNO, *1petitioner,
vs.
JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL
DEFENSE; ROMEO ESPINO, THE CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES.respondents.
G.R. No. L-35540 September 17, 1974
MAXIMO V. SOLIVEN, NAPOLEON G. RAMA, AND JOSE MARI
VELEZ, petitioners,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL
DEFENSE; HON. FRANCISCO TATAD, PRESS SECRETARY;
AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE
CONSTABULARY, respondents.
G.R. No. L-35547 September 17, 1974 *2
ENRIQUE VOLTAIRE GARCIA II, petitioner,
vs.
BRIG. GEN. FIDEL RAMOS, CHIEF, PHILIPPINE
CONSTABULARY; GEN. ROMEO ESPINO, CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES; AND HON. JUAN
PONCE ENRILE, SECRETARY OF NATIONAL
DEFENSE, respondents.
G.R. No. L-35556 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
VERONICA L. YUYITUNG AND TAN CHIN HIAN, petitioners,
vs.
JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE;
LIEUT. GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES; AND BRIG. GEN. FIDEL V.
RAMOS, CHIEF OF THE PHILIPPINE
CONSTABULARY, respondents.
G.R. No. L-35567 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
AMANDO DORONILA JUAN L. MERCADO, HERNANDO L.
ABAYA, ERNESTO GRANADA, LUIS D. BELTRAN, TAN CHIN
HIAN, BREN GUIAO, RUBEN CUSIPAG, ROBERTO ORDOEZ,
MANUEL ALMARIO AND WILLIE BAUN, petitioners,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL
DEFENSE; LIEUT. GEN. ROMEO ESPINO, CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN.
FIDEL V. RAMOS, CHIEF, PHILIPPINE
CONSTABULARY, respondents.
G.R. No. L-35571 September 17, 1974. *3
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
BREN Z. GUIAO, TERESITA M. GUIAO,petitioner,
vs.
JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL
DEFENSE; LT. GEN. ROMEO ESPINO, CHIEF OF STAFF OF THE

MAKALINTAL, C.J.:p
These cases are all petitions for habeas corpus, the petitioners
having been arrested and detained by the military by virtue of the
President's Proclamation No. 1081, dated September 21, 1972.
At the outset a word of clarification is in order. This is not the
decision of the Court in the sense that a decision represents a
consensus of the required majority of its members not only on the
judgment itself but also on the rationalization of the issues and
the conclusions arrived at. On the final result the vote is
practically unanimous; this is a statement of my individual opinion
as well as a summary of the voting on the major issues. Why no
particular Justice has been designated to write just one opinion for
the entire Court will presently be explained.
At one point during our deliberations on these cases it was
suggested that as Chief Justice I should write that opinion. The
impracticability of the suggestion shortly became apparent for a
number of reasons, only two of which need be mentioned. First,
the discussions, as they began to touch on particular issues,
revealed a lack of agreement among the Justices as to whether
some of those issues should be taken up although it was not
necessary to do so, they being merely convenient for the purpose
of ventilating vexing questions of public interest, or whether the
decision should be limited to those issues which are really
material and decisive in these cases. Similarly, there was no
agreement as to the manner the issues should be treated and
developed. The same destination would be reached, so to speak,
but through different routes and by means of different vehicles of
approach. The writing of separate opinions by individual Justices
was thus unavoidable, and understandably so for still another
reason, namely, that although little overt reference to it was made
at the time, the future verdict of history was very much a factor in
the thinking of the members, no other case of such transcendental
significance to the life of the nation having before confronted this
Court. Second and this to me was the insuperable obstacle I
was and am of the opinion, which was shared by six other
Justices 1 at the time the question was voted upon, that petitioner
Jose W. Diokno's motion of December 28, 1973 to withdraw his
petition (G.R. No. L-35539) should be granted, and therefore I was
in no position to set down the ruling of the Court on each of the
arguments raised by him, except indirectly, insofar as they had
been raised likewise in the other cases.
It should be explained at this point that when the Court voted on
Diokno's motion to withdraw his petition he was still under
detention without charges, and continued to remain so up to the
time the separate opinions of the individual Justices were put in
final form preparatory to their promulgation on September 12,
which was the last day of Justice Zaldivars tenure in the
Court. 2 Before they could be promulgated, however, a major
development supervened: petitioner Diokno was released by the
President in the morning of September 11, 1974. In view thereof
all the members of this Court except Justice Castro agreed to
dismiss Diokno's petition on the ground that it had become moot,
with those who originally voted to grant the motion for withdrawal
citing said motion as an additional ground for such dismissal.
The petitioners in the other cases, except Benigno Aquino, Jr. (G.R.
No. L-35546), either have been permitted to withdraw their
petitions or have been released from detention subject to certain
restrictions. 3 In the case of Aquino, formal charges of murder,
subversion and illegal possession of firearms were lodged against
him with a Military Commission on August 11, 1973; and on the
following August 23 he challenged the jurisdiction of said
Commission as well as his continued detention by virtue of those
charges in a petition for certiorari and prohibition filed in this
Court (G.R. No.
L-37364). The question came up as to whether or not Aquino's
petition for habeas corpus should be dismissed on the ground that
the case as to him should more appropriately be resolved in this

new petition. Of the twelve Justices, however, eight voted against

such dismissal and chose to consider the case on the merits. 4
On Diokno's motion to withdraw his petition I voted in favor of
granting it for two reasons. In the first place such withdrawal
would not emasculate the decisive and fundamental issues of
public interest that demanded to be resolved, for they were also
raised in the other cases which still remained pending. Secondly,
since it was this petitioner's personal liberty that was at stake, I
believed he had the right to renounce the application for habeas
corpus he initiated. Even if that right were not absolute I still
would respect his choice to remove the case from this Court's
cognizance, regardless of the fact that I disagreed with many of
his reasons for so doing. I could not escape a sense of irony in this
Court's turning down the plea to withdraw on the ground, so he
alleges among others, that this is no longer the Court to which he
originally applied for relief because its members have taken new
oaths of office under the 1973 Constitution, and then ruling
adversely to him on the merits of his petition.
It is true that some of the statements in the motion are an affront
to the dignity of this Court and therefore should not be allowed to
pass unanswered. Any answer, however, would not be foreclosed
by allowing the withdrawal. For my part, since most of those
statements are of a subjective character, being matters of
personal belief and opinion, I see no point in refuting them in
these cases. Indeed my impression is that they were beamed less
at this Court than at the world outside and designed to make
political capital of his personal situation, as the publicity given to
them by some segments of the foreign press and by local
underground propaganda news sheets subsequently confirmed. It
was in fact from that perspective that I deemed it proper to
respond in kind, that is, from a non-judicial forum, in an address I
delivered on February 19, 1974 before the LAWASIA, the Philippine
Bar Association and the Philippine Lawyers' Association. Justice
Teehankee, it may be stated, is of the opinion that a simple
majority of seven votes out of twelve is legally sufficient to make
the withdrawal of Diokno's petition effective, on the theory that
the requirement of a majority of eight votes applies only to a
decision on the merits.
In any event, as it turned out, after petitioner Diokno was released
by the President on September 11 all the members of this Court
except Justice Castro were agreed that his petition had become
moot and therefore should no longer be considered on the merits.
This notwithstanding, some of the opinions of the individual
members, particularly Justices Castro and Teehankee, should be
taken in the time setting in which they were prepared, that is,
before the order for the release of Diokno was issued.
The Cases.
The events which form the background of these nine petitions are
related, either briefly or in great detail, in the separate opinions
filed by the individual Justices. The petitioners were arrested and
held pursuant to General Order No. 2 of the President (September
22, 1972), "for being participants or for having given aid and
comfort in the conspiracy to seize political and state power in the
country and to take over the Government by force ..."
General Order No. 2 was issued by the President in the exercise of
the powers he assumed by virtue of Proclamation No. 1081
(September 21, 1972) placing the entire country under martial
law. The portions of the proclamation immediately in point read as
follows:

nations, crimes against public order, crimes involving

usurpation of authority, rank, title and improper use of
names, uniforms and insignia, crimes committed by public
officers, and for such other crimes as will be enumerated in
orders that I shall subsequently promulgate, as well as crimes
as a consequence of any violation of any decree, order or
regulation promulgated by me personally or promulgated
upon my direction shall be kept under detention until
otherwise ordered released by me or by my duly designated
representative.
The provision of the 1935 Constitution referred to in the
proclamation reads: "the President shall be commander-in-chief of
all armed forces of the Philippines and, whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion, insurrection, or rebellion. In
case of invasion, insurrection, or rebellion, or imminent danger
thereof, when the public safety requires it, he may suspend the
privilege of the writ of habeas corpus, or place the Philippines or
any part thereof under martial law."
1. The first major issue raised by the parties is whether this Court
may inquire into the validity of Proclamation No. 1081. Stated
more concretely, is the existence of conditions claimed to justify
the exercise of the power to declare martial law subject to judicial
inquiry? Is the question political or justiciable in character?
Justices Makasiar, Antonio, Esguerra, Fernandez and Aquino hold
that the question is political and therefore its determination is
beyond the jurisdiction of this Court. The reasons are given at
length in the separate opinions they have respectively signed.
Justice Fernandez adds that as a member of the Convention that
drafted the 1973 Constitution he believes that "the Convention
put an imprimatur on the proposition that the validity of a martial
law proclamation and its continuation is political and nonjusticiable in character."
Justice Barredo, on the other hand, believes that political
questions are not per se beyond the Court's jurisdiction, the
judicial power vested in it by the Constitution being plenary and
all-embracing, but that as a matter of policy implicit in the
Constitution itself the Court should abstain from interfering with
the Executive's Proclamation, dealing as it does with national
security, for which the responsibility is vested by the charter in
him alone. But the Court should act, Justice Barredo opines, when
its abstention from acting would result in manifest and palpable
transgression of the Constitution proven by facts of judicial notice,
no reception of evidence being contemplated for purposes of such
judicial action.
It may be noted that the postulate of non-justiciability as
discussed in those opinions involves disparate methods of
approach. Justice Esguerra maintains that the findings of the
President on the existence of the grounds for the declaration of
martial law are final and conclusive upon the Courts. He disagrees
vehemently with the ruling inLansang vs. Garcia, 42 SCRA 448,
December 11, 1971, and advocates a return to Barcelon vs. Baker,
5 Phil. 87 (1905), and Montenegro vs. Castaeda, 91 Phil. 882
(1952). Justice Barredo, for his part, holds that Lansang need not
be overturned, indeed does not control in these cases. He draws a
distinction between the power of the President to suspend the
privilege of the writ of habeas corpus, which was the issue in
Lansang, and his power to proclaim martial law, calling attention
to the fact that while the Bill of Rights prohibits suspension of the
privilege except in the instances specified therein, it places no
such prohibition or qualification with respect to the declaration of
martial law.

xxx xxx xxx

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article
VII, Section 10, Paragraph (2) of the Constitution, do hereby
place the entire Philippines as defined in Article I, Section 1 of
the Constitution under martial law and, in my capacity as
their Commander-in-Chief, do hereby command the Armed
Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of
lawless violence as well as any act of insurrection or rebellion
and to enforce obedience to all the laws and decrees, orders
and regulations promulgated by me personally or upon my
direction.
In addition, I do hereby order that all persons presently
detained, as well as all others who may hereafter be similarly
detained for the crimes of insurrection or rebellion, and all
other crimes and offenses committed in furtherance or on the
occasion thereof, or incident thereto, or in connection
therewith, for crimes against national security and the law of

Justice Antonio, with whom Justices Makasiar, Fernandez and

Aquino concur, finds that there is no dispute as to the existence of
a state of rebellion in the country, and on that premise
emphasizes the factor of necessity for the exercise by the
President of his power under the Constitution to declare martial
law, holding that the decision as to whether or not there is
such necessity is wholly confided to him and therefore is not
subject to judicial inquiry, his responsibility being directly to the
people.
Arrayed on the side of justiciability are Justices Castro, Fernando,
Teehankee and Muoz Palma. They hold that the constitutional
sufficiency of the proclamation may be inquired into by the Court,
and would thus apply the principle laid down in Lansang although
that case refers to the power of the President to suspend the
privilege of the writ of habeas corpus. The recognition of
justiciability accorded to the question in Lansang, it should be
emphasized, is there expressly distinguished from the power of
judicial review in ordinary civil or criminal cases, and is limited to
ascertaining "merely whether he (the President) has gone beyond

the constitutional limits of his jurisdiction, not to exercise the

power vested in him or to determine the wisdom of his act." The
test is not whether the President's decision is correct but whether,
in suspending the writ, he did or did not act arbitrarily. Applying
this test, the finding by the Justices just mentioned is that there
was no arbitrariness in the President's proclamation of martial law
pursuant to the 1935 Constitution; and I concur with them in that
finding. The factual bases for the suspension of the privilege of
the writ of habeas corpus, particularly in regard to the existence
of a state of rebellion in the country, had not disappeared, indeed
had been exacerbated, as events shortly before said proclamation
clearly demonstrated. On this Point the Court is practically
unanimous; Justice Teehankee merely refrained from discussing it.
Insofar as my own opinion is concerned the cleavage in the Court
on the issue of justiciability is of not much more than academic
interest for purposes of arriving at a judgment. I am not unduly
exercised by Americas decisions on the subject written in another
age and political clime, or by theories of foreign authors in
political science. The present state of martial law in the Philippines
is peculiarly Filipino and fits into no traditional patterns or judicial
precedents.
In the first place I am convinced (as are the other Justices),
without need of receiving evidence as in an ordinary adversary
court proceeding, that a state of rebellion existed in the country
when Proclamation No. 1081 was issued. It was a matter of
contemporary history within the cognizance not only of the courts
but of all observant people residing here at the time. Many of the
facts and events recited in detail in the different "Whereases" of
the proclamation are of common knowledge. The state of rebellion
continues up to the present. The argument that while armed
hostilities go on in several provinces in Mindanao there are none
in other regions except in isolated pockets in Luzon, and that
therefore there is no need to maintain martial law all over the
country, ignores the sophisticated nature and ramifications of
rebellion in a modern setting. It does not consist simply of armed
clashes between organized and identifiable groups on fields of
their own choosing. It includes subversion of the most subtle kind,
necessarily clandestine and operating precisely where there is no
actual fighting. Underground propaganda, through printed news
sheets or rumors disseminated in whispers; recruitment of armed
and ideological adherents, raising of funds, procurement of arms
and material, fifth-column activities including sabotage and
intelligence all these are part of the rebellion which by their
nature are usually conducted far from the battle fronts. They
cannot be counteracted effectively unless recognized and dealt
with in that context.

President in the beginning whether or not purely political and

therefore non-justiciable this Court is precluded from applying
its judicial yardstick to the act of the sovereign.
2. With respect to the petitioners who have been released from
detention but have not withdrawn their petitions because they are
still subject to certain restrictions, 5 the ruling of the Court is that
the petitions should be dismissed. The power to detain persons
even without charges for acts related to the situation which
justifies the proclamation of martial law, such as the existence of
a state of rebellion, necessarily implies the power (subject, in the
opinion of the Justices who consider Lansang applicable, to the
same test of arbitrariness laid down therein), to impose upon the
released detainees conditions or restrictions which are germane to
and necessary to carry out the purposes of the proclamation.
Justice Fernando, however, "is for easing the restrictions on the
right to travel of petitioner Rodrigo" and others similarly situated
and so to this extent dissents from the ruling of the majority; while
Justice Teehankee believes that those restrictions do not
constitute deprivation of physical liberty within the meaning of the
constitutional provision on the privilege of the writ ofhabeas
corpus.
It need only be added that, to my mind, implicit in a state of
martial law is the suspension of the said privilege with respect to
persons arrested or detained for acts related to the basic objective
of the proclamation, which is to suppress invasion, insurrection, or
rebellion, or to safeguard public safety against imminent danger
thereof. The preservation of society and national survival take
precedence. On this particular point, that is, that the proclamation
of martial law automatically suspends the privilege of the writ as
to the persons referred to, the Court is practically unanimous.
Justice Fernando, however, says that to him that is still an open
question; and Justice Muoz Palma qualifiedly dissents from the
majority in her separate opinion, but for the reasons she discusses
therein votes for the dismissal of the petitions.
IN VIEW OF ALL THE FOREGOING AND FOR THE REASONS STATED
BY THE MEMBERS OF THE COURT IN THEIR SEPARATE OPINIONS,
JUDGMENT IS HEREBY RENDERED DISMISSING ALL THE PETITIONS,
EXCEPT THOSE WHICH HAVE BEEN PREVIOUSLY WITHDRAWN BY
THE RESPECTIVE PETITIONERS WITH THE APPROVAL OF THIS
COURT, AS HEREINABOVE MENTIONED. NO COSTS.
Makasiar, Esguerra, Fernandez, Muoz Palma and Aquino, JJ.,
concur.
Prefatory Note

Secondly, my view, which coincides with that of other members of

the Court as stated in their opinions, is that the question of
validity of Proclamation No. 1081 has been foreclosed by the
transitory provision of the 1973 Constitution [Art. XVII, Sec. 3(2)]
that "all proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be
part of the law of the land and shall remain valid, legal, binding
and effective even after ... the ratification of this Constitution ..."
To be sure, there is an attempt in these cases to resuscitate the
issue of the effectivity of the new Constitution. All that, however,
is behind us now. The question has been laid to rest by our
decision in Javellana vs. Executive Secretary (L-36142, 50 SCRA
30, March 31, 1973), and of course by the existing political
realities both in the conduct of national affairs and in our relations
with other countries.
On the effect of the transitory provision Justice Muoz Palma
withholds her assent to any sweeping statement that the same in
effect validated, in the constitutional sense, all "such
proclamations, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President." All that she
concedes is that the transitory provision merely gives them
"the imprimatur of a law but not of a constitutional mandate," and
as such therefore "are subject to judicial review when proper
under the Constitution.
Finally, the political-or-justiciable question controversy indeed, any
inquiry by this Court in the present cases into the constitutional
sufficiency of the factual bases for the proclamation of martial law
has become moot and purposeless as a consequence of the
general referendum of July 27-28, 1973. The question propounded
to the voters was: "Under the (1973) Constitution, the President, if
he so desires, can continue in office beyond 1973. Do you want
President Marcos to continue beyond 1973 and finish the reforms
he initiated under Martial Law?" The overwhelming majority of
those who cast their ballots, including citizens between 15 and 18
years, voted affirmatively on the proposal. The question was
thereby removed from the area of presidential power under the
Constitution and transferred to the seat of sovereignty itself.
Whatever may be the nature of the exercise of that power by the

(written on September 12, 1974)

My separate opinion below in the nine cases at bar was handed to
Chief Justice Querube C. Makalintal on Monday, September 9,
1974, for promulgation (together with the individual opinions of
the Chief Justice and the other Justices) on September 12 (today)
as agreed upon by the Court.
On September 11 the petitioner Jose W. Diokno was released from
military custody. The implications of this supervening event were
lengthily discussed by the Court in its deliberations in the
afternoon. Eleven members thereafter voted to dismiss Diokno's
petition as being "moot and academic;" I cast the lone dissenting
vote. Although perhaps in the strictest technical sense that
accords with conventional legal wisdom, the petition has become
"moot" because Diokno has been freed from physical
confinement, I am nonetheless persuaded that the grave issues of
law he has posed and the highly insulting and derogatory
imputations made by him against the Court and its members
constitute an inescapable residue of questions of transcendental
dimension to the entire nation and its destiny and to the future of
the Court questions that cannot and should not be allowed to
remain unresolved and unanswered.
I have thus not found it needful nor even advisable to recast my
separate opinion or change a word of it.
I invite the reader to assess my 38-page separate opinion which
immediately follows, in the light of the foregoing context and
factual setting.
FRED RUIZ CASTRO
Associate Justice.

G.R. No. L-36142 March 31, 1973

JOSUE JAVELLANA, petitioner,

vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL
DEFENSE, THE SECRETARY OF JUSTICE AND THE SECRETARY
OF FINANCE, respondents.
G.R. No. L-36164 March 31, 1973
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES,
MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO DE
PERALTA AND LORENZO M. TAADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE ,
THE SECRETARY OF JUSTICE, THE SECRETARY OF LAND
REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE
AUDITOR GENERAL, THE BUDGET COMMISSIONER, THE
CHAIRMAN OF PRESIDENTIAL COMMISSION ON
REORGANIZATION, THE TREASURER OF THE PHILIPPINES,
THE COMMISSION ON ELECTIONS AND THE COMMISSIONER
OF CIVIL SERVICE, respondents.
G.R. No. L-36165 March 31, 1973.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R.
SALONGA, SALVADOR H. LAUREL, RAMON V. MITRA, JR. and
EVA ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive
Secretary; JUAN PONCE ENRILE, in his capacity as
Secretary of National Defense; General ROMEO ESPINO, in
his capacity as Chief of Staff of the Armed Forces of the
Philippines; TANCIO E. CASTAEDA, in his capacity as
Secretary General Services; Senator GIL J. PUYAT, in his
capacity as President of the Senate; and Senator JOSE ROY,
his capacity, as President Pro Tempore of the of the
Senate, respondents.
G.R. No. L-36236 March 31, 1973
EDDIE B. MONTECLARO, [personally and in his capacity as
President of the National Press Club of the
Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC
INFORMATION, THE AUDITOR GENERAL, THE BUDGET
COMMISSIONER & THE NATIONAL TREASURER, respondents.
G.R. No. L-36283 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR.,
LEONARDO ASODISEN, JR., and RAUL M.
GONZALEZ, petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE
SECRETARY OF NATIONAL DEFENSE, THE HONORABLE
BUDGET COMMISSIONER, THE HONORABLE AUDITOR
GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Taada and Associates for petitioners Vidal Tan, et al.
Taada, Salonga, Ordoez, Rodrigo, Sanidad, Roxas. Gonzales and
Arroyo for petitioners Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie
Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag,
et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor
Vicente V. Mendoza and Solicitor Reynato S. Puno for other
respondents.
RESOLUTION
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961,
L-35965 and
L-35979, decided on January 22, 1973, to which We will hereafter
refer collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein
rendered, from which We quote:
On March 16, 1967, Congress of the Philippines passed
Resolution No. 2, which was amended by Resolution No. 4 of
said body, adopted on June 17, 1969, calling a Convention to
propose amendments to the Constitution of the Philippines.
Said Resolution No. 2, as amended, was implemented by
Republic Act No. 6132, approved on August 24, 1970,
pursuant to the provisions of which the election of delegates
to said Convention was held on November 10, 1970, and the
1971 Constitutional Convention began to perform its
functions on June 1, 1971. While the Convention was in
session on September 21, 1972, the President issued
Proclamation No. 1081 placing the entire Philippines under
Martial Law. On November 29, 1972, the Convention
approved its Proposed Constitution of the Republic of the
Philippines. The next day, November 30, 1972, the President
of the Philippines issued Presidential Decree No. 73,
"submitting to the Filipino people for ratification or rejection
the Constitution of the Republic of the Philippines proposed
by the 1971 Constitutional Convention, and appropriating

funds therefor," as well as setting the plebiscite for said

ratification or rejection of the Proposed Constitution on
January 15, 1973.
Soon after, or on December 7, 1972, Charito Planas filed, with
this Court, Case G.R. No. L-35925, against the Commission on
Elections, the Treasurer of the Philippines and the Auditor
General, to enjoin said "respondents or their agents from
implementing Presidential Decree No. 73, in any manner,
until further orders of the Court," upon the grounds, inter alia,
that said Presidential Decree "has no force and effect as law
because the calling ... of such plebiscite, the setting of
guidelines for the conduct of the same, the prescription of the
ballots to be used and the question to be answered by the
voters, and the appropriation of public funds for the purpose,
are, by the Constitution, lodged exclusively in Congress ...,"
and "there is no proper submission to the people of said
Proposed Constitution set for January 15, 1973, there being
no freedom of speech, press and assembly, and there being
no sufficient time to inform the people of the contents
thereof."
Substantially identical actions were filed, on December 8,
1972, by Pablo C. Sanidad against the Commission on
Elections (Case G.R. No. L- 35929) on December 11, 1972, by
Gerardo Roxas, et al., against the Commission on Elections,
the Director of Printing, the National Treasurer and the
Auditor General (Case G.R. L-35940), by Eddie B. Monteclaro
against the Commission on Elections and the Treasurer of the
Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoez,
et al. against the National Treasurer and the Commission on
Elections (Case G.R. No. L-35942); on December 12, 1972, by
Vidal Tan, et al., against the Commission on Elections, the
Treasurer of the Philippines, the Auditor General and the
Director of Printing (Case G.R. No. L-35948) and by Jose W.
Diokno and Benigno S. Aquino against the Commission on
Elections (Case G.R. No. L-35953); on December 14, 1972, by
Jacinto Jimenez against the Commission on Elections, the
Auditor General, the Treasurer of the Philippines and the
Director of the Bureau of Printing (Case G.R. No. L-35961),
and by Raul M. Gonzales against the Commission on
Elections, the Budget Commissioner, the National Treasurer
and the Auditor General (Case G.R. No. L-35965); and on
December 16, 1972, by Ernesto C. Hidalgo against the
Commission on Elections, the Secretary of Education, the
National Treasurer and the Auditor General (Case G.R. No. L35979).
In all these cases, except the last (G.R. No. L-35979), the
respondents were required to file their answers "not later
than 12:00 (o'clock) noon of Saturday, December 16, 1972."
Said cases were, also, set for hearing and partly heard on
Monday, December 18, 1972, at 9:30 a.m. The hearing was
continued on December 19, 1972. By agreement of the
parties, the aforementioned last case G.R. No. L-35979
was, also, heard, jointly with the others, on December 19,
1972. At the conclusion of the hearing, on that date, the
parties in all of the aforementioned cases were given a short
period of time within which "to submit their notes on the
points they desire to stress." Said notes were filed on
different dates, between December 21, 1972, and January 4,
1973.
Meanwhile, or on December 17, 1972, the President had
issued an order temporarily suspending the effects of
Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution. On December 23, the
President announced the postponement of the plebiscite for
the ratification or rejection of the Proposed Constitution. No
formal action to this effect was taken until January 7, 1973,
when General Order No. 20 was issued, directing "that the
plebiscite scheduled to be held on January 15, 1978, be
postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of
December 17, 1972, temporarily suspending the effects of
Proclamation No. 1081 for purposes of free and open debate
on the proposed Constitution."
In view of these events relative to the postponement of the
aforementioned plebiscite, the Court deemed it fit to refrain,
for the time being, from deciding the aforementioned cases,
for neither the date nor the conditions under which said
plebiscite would be held were known or announced officially.
Then, again, Congress was, pursuant to the 1935
Constitution, scheduled to meet in regular session on January
22, 1973, and since the main objection to Presidential Decree
No. 73 was that the President does not have the legislative
authority to call a plebiscite and appropriate funds therefor,
which Congress unquestionably could do, particularly in view
of the formal postponement of the plebiscite by the President
reportedly after consultation with, among others, the
leaders of Congress and the Commission on Elections the
Court deemed it more imperative to defer its final action on
these cases.
"In the afternoon of January 12, 1973, the petitioners in Case
G.R. No.
L-35948 filed an "urgent motion," praying that said case be
decided "as soon as possible, preferably not later than
January 15, 1973." It was alleged in said motion, inter alia:

"6. That the President subsequently announced the issuance

of Presidential Decree No. 86 organizing the so-called Citizens
Assemblies, to be consulted on certain public questions
[Bulletin Today, January 1, 1973];
"7. That thereafter it was later announced that "the
Assemblies will be asked if they favor or oppose
[1] The New Society;
[2] Reforms instituted under Martial Law;
[3] The holding of a plebiscite on the proposed new
Constitution and when (the tentative new dates given
following the postponement of the plebiscite from the
original date of January 15 are February 19 and March
5);
[4] The opening of the regular session slated on January
22 in accordance with the existing Constitution despite
Martial Law." [Bulletin Today, January 3, 1973.]
"8. That it was later reported that the following are to be the
forms of the questions to be asked to the Citizens
Assemblies:
[1] Do you approve of the New Society?
[2] Do you approve of the reform measures under
martial law?
[3] Do you think that Congress should meet again in
regular session?
[4] How soon would you like the plebiscite on the new
Constitution to be held? [Bulletin Today, January 5,
1973].
"9. That the voting by the so-called Citizens Assemblies was
announced to take place during the period from January 10 to
January 15, 1973;
"10. That on January 10, 1973, it was reported that on more
question would be added to the four (4) question previously
announced, and that the forms of the question would be as
follows:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos running the
affairs of the government? [Bulletin Today, January 10,
1973; emphasis an additional question.]
"11. That on January 11, 1973, it was reported that six (6)
more questions would be submitted to the so-called Citizens
Assemblies:
[1] Do you approve of the citizens assemblies as the
base of popular government to decide issues of national
interests?
[2] Do you approve of the new Constitution?
[3] Do you want a plebiscite to be called to ratify the
new Constitution?
[4] Do you want the elections to be held in November,
1973 in accordance with the provisions of the 1935
Constitution?
[5] If the elections would not be held, when do you want
the next elections to be called?
[6] Do you want martial law to continue? [Bulletin Today,
January 11, 1973; emphasis supplied]
"12. That according to reports, the returns with respect to the
six (6) additional questions quoted above will be on a form
similar or identical to Annex "A" hereof;
"13. That attached to page 1 of Annex "A" is another page,
which we marked as Annex "A-1", and which reads:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in
government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked.
Or if it is to be convened at all, it should not be done so until
after at least seven (7) years from the approval of the New
Constitution by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be
considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution,
then the new Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up
with politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on
elections will be enough for stability to be established in the
country, for reforms to take root and normalcy to return.

QUESTION No. 6
We want President Marcos to continue with Martial Law. We
want him to exercise his powers with more authority. We want
him to be strong and firm so that he can accomplish all his
reform programs and establish normalcy in the country. If all
other measures fail, we want President Marcos to declare a
revolutionary government along the lines of the new
Constitution without the ad interim Assembly."
"Attention is respectfully invited to the comments on
"Question No. 3," which reads:
QUESTION No. 3
The vote of the Citizens Assemblies should be considered the
plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution,
then the new Constitution should be deemed ratified.
This, we are afraid, and therefore allege, is pregnant with
ominous possibilities.
14. That, in the meantime, speaking on television and over
the radio, on January 7, 1973, the President announced that
the limited freedom of debate on the proposed Constitution
was being withdrawn and that the proclamation of martial
law and the orders and decrees issued thereunder would
thenceforth strictly be enforced [Daily Express, January 8,
1973];
15. That petitioners have reason to fear, and therefore state,
that the question added in the last list of questions to be
asked to the Citizens Assemblies, namely:
Do you approve of the New Constitution?
in relation to the question following it:
Do you still want a plebiscite to be called to ratify the new
Constitution?"
would be an attempt to by-pass and short-circuit this
Honorable Court before which the question of the validity of
the plebiscite on the proposed Constitution is now pending;
"16. That petitioners have reason to fear, and therefore
allege, that if an affirmative answer to the two questions just
referred to will be reported then this Honorable Court and the
entire nation will be confronted with a fait accompli which has
been attained in a highly unconstitutional and undemocratic
manner;
"17. That the fait accompli would consist in the supposed
expression of the people approving the proposed
Constitution;
"18. That, if such event would happen, then the case before
this Honorable Court could, to all intents and purposes,
become moot because, petitioners fear, and they therefore
allege, that on the basis of such supposed expression of the
will of the people through the Citizens Assemblies, it would be
announced that the proposed Constitution, with all its
defects, both congenital and otherwise, has been ratified;
"19. That, in such a situation the Philippines will be facing a
real crisis and there is likelihood of confusion if not chaos,
because then, the people and their officials will not know
which Constitution is in force.
"20. That the crisis mentioned above can only be avoided if
this Honorable Court will immediately decide and announce
its decision on the present petition;
"21. That with the withdrawal by the President of the limited
freedom of discussion on the proposed Constitution which
was given to the people pursuant to Sec. 3 of Presidential
Decree No. 73, the opposition of respondents to petitioners'
prayer at the plebiscite be prohibited has now collapsed and
that a free plebiscite can no longer be held."
At about the same time, a similar prayer was made in a
"manifestation" filed by the petitioners in L-35949, "Gerardo
Roxas, et al. v. Commission on Elections, et al.," and L-35942,
"Sedfrey A. Ordoez, et al. v. The National Treasurer, et al."
The next day, January 13, 1973, which was a Saturday, the
Court issued a resolution requiring the respondents in said
three (3) cases to comment on said "urgent motion" and
"manifestation," "not later than Tuesday noon, January 16,
1973." Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 riled a
"supplemental motion for issuance of restraining order and
inclusion of additional respondents," praying
"... that a restraining order be issued enjoining and
restraining respondent Commission on Elections, as well
as the Department of Local Governments and its head,
Secretary Jose Roo; the Department of Agrarian
Reforms and its head, Secretary Conrado Estrella; the
National Ratification Coordinating Committee and its
Chairman, Guillermo de Vega; their deputies,
subordinates and substitutes, and all other officials and
persons who may be assigned such task, from collecting,
certifying, and announcing and reporting to the President
or other officials concerned, the so-called Citizens'
Assemblies referendum results allegedly obtained when
they were supposed to have met during the period
comprised between January 10 and January 15, 1973, on

the two questions quoted in paragraph 1 of this

Supplemental Urgent Motion."
In support of this prayer, it was alleged
"3. That petitioners are now before this Honorable Court in
order to ask further that this Honorable Court issue a
restraining order enjoining herein respondents, particularly
respondent Commission on Elections as well as the
Department of Local Governments and its head, Secretary
Jose Roo; the Department of Agrarian Reforms and its head,
Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de
Vega; and their deputies, subordinates and/or substitutes,
from collecting, certifying, announcing and reporting to the
President the supposed Citizens' Assemblies referendum
results allegedly obtained when they were supposed to have
met during the period between January 10 and January 15,
1973, particularly on the two questions quoted in paragraph
1 of this Supplemental Urgent Motion;
"4. That the proceedings of the so-called Citizens' Assemblies
are illegal, null and void particularly insofar as such
proceedings are being made the basis of a supposed
consensus for the ratification of the proposed Constitution
because:
[a] The elections
contemplated in the
Constitution, Article XV, at
which the proposed
constitutional amendments
are to be submitted for
ratification, are elections at
which only qualified and
duly registered voters are
permitted to vote, whereas,
the so called Citizens'
Assemblies were
participated in by persons
15 years of age and older,
regardless of qualifications
or lack thereof, as
prescribed in the Election
Code;
[b] Elections or plebiscites for the ratification of
constitutional amendments contemplated in Article XV of
the Constitution have provisions for the secrecy of
choice and of vote, which is one of the safeguards of
freedom of action, but votes in the Citizens' Assemblies
were open and were cast by raising hands;
[c] The Election Code makes ample provisions for free,
orderly and honest elections, and such provisions are a
minimum requirement for elections or plebiscites for the
ratification of constitutional amendments, but there were
no similar provisions to guide and regulate proceedings
of the so called Citizens' Assemblies;
[d] It is seriously to be doubted that, for lack of material
time, more than a handful of the so called Citizens'
Assemblies have been actually formed, because the
mechanics of their organization were still being
discussed a day or so before the day they were
supposed to begin functioning:
"Provincial governors and city and municipal mayors
had been meeting with barrio captains and community
leaders since last Monday [January 8, 1973) to thresh
out the mechanics in the formation of the Citizens
Assemblies and the topics for discussion." [Bulletin
Today, January 10, 1973]
"It should be recalled that the Citizens' Assemblies were
ordered formed only at the beginning of the year [Daily
Express, January 1, 1973], and considering the lack of
experience of the local organizers of said assemblies, as well
as the absence of sufficient guidelines for organization, it is
too much to believe that such assemblies could be organized
at such a short notice.
"5. That for lack of material time, the appropriate amended
petition to include the additional officials and government
agencies mentioned in paragraph 3 of this Supplemental
Urgent Motion could not be completed because, as noted in
the Urgent Motion of January 12, 1973, the submission of the
proposed Constitution to the Citizens' Assemblies was not
made known to the public until January 11, 1973. But be that
as it may, the said additional officials and agencies may be
properly included in the petition at bar because:
[a] The herein petitioners have prayed in their petition for
the annulment not only of Presidential Decree No. 73, but
also of "any similar decree, proclamation, order or
instruction.
so that Presidential Decree No. 86, insofar at least as it
attempts to submit the proposed Constitution to a plebiscite
by the so-called Citizens' Assemblies, is properly in issue in
this case, and those who enforce, implement, or carry out the
said Presidential Decree No. 86. and the instructions
incidental thereto clearly fall within the scope of this petition;
[b] In their petition, petitioners sought the issuance of a
writ of preliminary injunction restraining not only the

respondents named in the petition but also their

"agents" from implementing not only Presidential Decree
No. 73, but also "any other similar decree, order,
instruction, or proclamation in relation to the holding of a
plebiscite on January 15, 1973 for the purpose of
submitting to the Filipino people for their ratification or
rejection the 1972 Draft or proposed Constitution
approved by the Constitutional Convention on November
30, 1972"; and finally,
[c] Petitioners prayed for such other relief which may be
just and equitable. [p. 39, Petition].
"Therefore, viewing the case from all angles, the officials and
government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion, can lawfully be reached by the
processes of this Honorable Court by reason of this petition,
considering, furthermore, that the Commission on Elections
has under our laws the power, among others, of:
(a) Direct and immediate supervision and control over
national, provincial, city, municipal and municipal district
officials required by law to perform duties relative to the
conduct of elections on matters pertaining to the
enforcement of the provisions of this Code ..." [Election
Code of 1971, Sec. 3].
"6. That unless the petition at bar is decided immediately and
the Commission on Elections, together with the officials and
government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion are restrained or enjoined from
collecting, certifying, reporting or announcing to the President
the results of the alleged voting of the so-called Citizens'
Assemblies, irreparable damage will be caused to the
Republic of the Philippines, the Filipino people, the cause of
freedom an democracy, and the petitioners herein because:
[a] After the result of the supposed voting on the
questions mentioned in paragraph 1 hereof shall have
been announced, a conflict will arise between those who
maintain that the 1935 Constitution is still in force, on
the one hand, and those who will maintain that it has
been superseded by the proposed Constitution, on the
other, thereby creating confusion, if not chaos;
[b] Even the jurisdiction of this Court will be subject to
serious attack because the advocates of the theory that
the proposed Constitution has been ratified by reason of
the announcement of the results of the proceedings of
the so-called Citizens' Assemblies will argue that,
General Order No. 3, which shall also be deemed ratified
pursuant to the Transitory Provisions of the proposed
Constitution, has placed Presidential Decree Nos. 73 and
86 beyond the reach and jurisdiction of this Honorable
Court."
On the same date January 15, 1973 the Court passed a
resolution requiring the respondents in said case G.R. No. L35948 to file "file an answer to the said motion not later than
4 P.M., Tuesday, January 16, 1973," and setting the motion for
hearing "on January 17, 1973, at 9:30 a.m." While the case
was being heard, on the date last mentioned, at noontime,
the Secretary of Justice called on the writer of this opinion
and said that, upon instructions of the President, he (the
Secretary of Justice) was delivering to him (the writer) a copy
of Proclamation No. 1102, which had just been signed by the
President. Thereupon, the writer returned to the Session Hall
and announced to the Court, the parties in G.R. No. L-35948
inasmuch as the hearing in connection therewith was still
going on and the public there present that the President
had, according to information conveyed by the Secretary of
Justice, signed said Proclamation No. 1102, earlier that
morning. Thereupon, the writer read Proclamation No. 1102
which is of the following tenor:
"BY THE PRESIDENT OF THE PHILIPPINES
"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF
THE CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
"WHEREAS, the Constitution proposed by the nineteen
hundred seventy-one Constitutional Convention is subject to
ratification by the Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios, in
municipalities and in districts/wards in chartered cities
pursuant to Presidential Decree No. 86, dated December 31,
1972, composed of all persons who are residents of the
barrio, district or ward for at least six months, fifteen years of
age or over, citizens of the Philippines and who are registered
in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;
"WHEREAS, the said Citizens Assemblies were established
precisely to broaden the base of citizen participation in the
democratic process and to afford ample opportunity for the
citizenry to express their views on important national issues;

"WHEREAS, responding to the clamor of the people and

pursuant to Presidential Decree No. 86-A, dated January 5,
1973, the following questions were posed before the Citizens
Assemblies or Barangays: Do you approve of the New
Constitution? Do you still want a plebiscite to be called to
ratify the new Constitution?
"WHEREAS, fourteen million nine hundred seventy-six
thousand five hundred sixty-one (14,976,561) members of all
the Barangays (Citizens Assemblies) voted for the adoption of
the proposed Constitution, as against seven hundred fortythree thousand eight hundred sixty-nine (743,869) who voted
for its rejection; while on the question as to whether or not
the people would still like a plebiscite to be called to ratify the
new Constitution, fourteen million two hundred ninety-eight
thousand eight hundred fourteen (14,298,814) answered that
there was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a
vote in a plebiscite;
"WHEREAS, since the referendum results show that more
than ninety-five (95) per cent of the members of the
Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly
recommended that the new Constitution should already be
deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
the Philippines, by virtue of the powers in me vested by the
Constitution, do hereby certify and proclaim that the
Constitution proposed by the nineteen hundred and seventyone (1971) Constitutional Convention has been ratified by an
overwhelming majority of all of the votes cast by the
members of all the Barangays (Citizens Assemblies)
throughout the Philippines, and has thereby come into effect.
"IN WITNESS WHEREOF, I have hereunto set my hand and
caused the seal of the Republic of the Philippines to be
affixed.
"Done in the City of Manila, this 17th day of January, in the
year of Our Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS
"President of the Philippines
"By the President:
"ALEJANDRO MELCHOR
"Executive Secretary"
Such is the background of the cases submitted
determination. After admitting some of the allegations made
in the petition in 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.
Immediately after the hearing held on January 17, 1973, or
since the afternoon of that date, the Members of the Court
have been deliberating on the aforementioned cases and,
after extensive discussions on the merits thereof, have
deemed it best that each Member write his own views
thereon and that thereafter the Chief Justice should state the
result or the votes thus cast on the points in issue. Hence, the
individual views of my brethren in the Court are set forth in
the opinions attached hereto, except that, instead of writing
their separate opinions, some Members have preferred to
merely concur in the opinion of one of our colleagues.
Then the writer of said decision expressed his own opinion on the
issues involved therein, after which he recapitulated the views of
the Members of the Court, as follows:
1. There is unanimity on the justiciable nature
of the issue on the legality of Presidential
Decree No. 73.
2. On the validity of the decree itself, Justices Makalintal,
Castro, Fernando, Teehankee, Esguerra and myself, or six (6)
Members of the Court, are of the opinion that the issue has
become moot and academic, whereas Justices Barredo,
Makasiar and Antonio voted to uphold the validity of said
Decree.
3. On the authority of the 1971 Constitutional Convention to
pass the proposed Constitution or to incorporate therein the
provisions contested by the petitioners in L-35948, Justices
Makalintal, Castro, Teehankee and Esguerra opine that the
issue has become moot and academic. Justices Fernando,
Barredo, Makasiar, Antonio and myself have voted to uphold
the authority of the Convention.

4. Justice Fernando, likewise, expressed the view that the

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

on Elections and the Commissioner of Civil Service 4 on February

3, 1973, by Eddie Monteclaro, personally and as President of the
National Press Club of the Philippines, against the Executive
Secretary, the Secretary of Public Information, the Auditor
General, the Budget Commissioner and the National
Treasurer 5 and on February 12, 1973, by Napoleon V. Dilag,
Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M.
Gonzales, 6 against the Executive Secretary, the Secretary of
National Defense, the Budget Commissioner and the Auditor
General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla,
Jovito R. Salonga, Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva
Estrada-Kalaw, the first as "duly elected Senator and Minority
Floor Leader of the Senate," and others as "duly elected
members" thereof, filed Case G.R. No. L-36165, against the
Executive Secretary, the Secretary National Defense, the Chief of
Staff of the Armed Forces of the Philippines, the Secretary of
General Services, the President and the President Pro Tempore of
the Senate. In their petition as amended on January 26, 1973
petitioners Gerardo Roxas, et al. allege, inter alia, that the term of
office of three of the aforementioned petitioners 8 would expire on
December 31, 1975, and that of the others 9 on December 31,
1977; that pursuant to our 1935 Constitution, "which is still in
force Congress of the Philippines "must convene for its 8th Session
on Monday, January 22, 1973, at 10:00 A.M., which is regular
customary hour of its opening session"; that "on said day, from
10:00 A.M. up to the afternoon," said petitioner "along with their
other colleagues, were unlawfully prevented from using the
Senate Session Hall, the same having been closed by the
authorities in physical possession and control the Legislative
Building"; that "(a)t about 5:00 to 6:00 P.M. the said day, the
premises of the entire Legislative Building were ordered cleared
by the same authorities, and no one was allowed to enter and
have access to said premises"; that "(r)espondent Senate
President Gil J. Puyat and, in his absence, respondent President Pro
Tempore Jose Roy we asked by petitioning Senators to perform
their duties under the law and the Rules of the Senate, but
unlawfully refrained and continue to refrain from doing so"; that
the petitioners ready and willing to perform their duties as duly
elected members of the Senate of the Philippines," but respondent
Secretary of National Defense, Executive Secretary and Chief of
Staff, "through their agents and representatives, are preventing
petitioners from performing their duties as duly elected Senators
of the Philippines"; that "the Senate premise in the Congress of
the Philippines Building ... are occupied by and are under the
physical control of the elements military organizations under the
direction of said respondents"; that, as per "official reports, the
Department of General Services ... is now the civilian agency in
custody of the premises of the Legislative Building"; that
respondents "have unlawfully excluded and prevented, and
continue to so exclude and prevent" the petitioners "from the
performance of their sworn duties, invoking the alleged approval
of the 1972 (1973) Constitution of the Philippines by action of the
so-called Citizens' Assemblies on January 10, 1973 to January 15,
1973, as stated in and by virtue of Proclamation No. 1102 signed
and issued by the President of the Philippines"; that "the alleged
creation of the Citizens' Assemblies as instrumentalities for the
ratification of the Constitution of the Republic of the Philippines" is
inherently illegal and palpably unconstitutional; that respondents
Senate President and Senate President Pro Tempore "have
unlawfully refrained and continue to refrain from and/or unlawfully
neglected and continue to neglect the performance of their duties
and functions as such officers under the law and the Rules of the
Senate" quoted in the petition; that because of events
supervening the institution of the plebiscite cases, to which
reference has been made in the preceding pages, the Supreme
Court dismissed said cases on January 22, 1973, by a majority
vote, upon the ground that the petitions therein had become moot
and academic; that the alleged ratification of the 1972 (1973)
Constitution "is illegal, unconstitutional and void and ... can not
have superseded and revoked the 1935 Constitution," for the
reasons specified in the petition as amended; that, by acting as
they did, the respondents and their "agents, representatives and
subordinates ...have excluded the petitioners from an office to
which" they "are lawfully entitled"; that "respondents Gil J. Puyat
and Jose Roy have unlawfully refrained from convening the Senate
for its 8th session, assuming general jurisdiction over the Session
Hall and the premises of the Senate and ... continue such inaction
up to this time and ... a writ of mandamus is warranted in order to
compel them to comply with the duties and functions specifically
enjoined by law"; and that "against the above mentioned unlawful
acts of the respondents, the petitioners have no appeal nor other
speedy and adequate remedy in the ordinary course of law except
by invoking the equitable remedies of mandamus and prohibition
with the provisional remedy of preliminary mandatory injunction."
Premised upon the foregoing allegations, said petitioners prayed
that, "pending hearing on the merits, a writ of preliminary
mandatory injunction be issued ordering respondents Executive
Secretary, the Secretary of National Defense, the Chief of Staff of
the Armed Forces of the Philippines, and the ... Secretary of
General Service, as well as all their agents, representatives and
subordinates to vacate the premises of the Senate of the
Philippines and to deliver physical possession of the same to the
President of the Senate or his authorized representative"; and that
hearing, judgment be rendered declaring null and Proclamation
No. 1102 ... and any order, decree, proclamation having the same
import and objective, issuing writs of prohibition and mandamus,

as prayed for against above-mentioned respondents, and making

the writ injunction permanent; and that a writ of mandamusbe
issued against the respondents Gil J. Puyat and Jose Roy directing
them to comply with their duties and functions as President and
President Pro Tempore, respectively, of the Senate of Philippines,
as provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or
amended petitions, respondents filed, with the leave Court first
had and obtained, a consolidated comment on said petitions
and/or amended petitions, alleging that the same ought to have
been dismissed outright; controverting petitioners' allegations
concerning the alleged lack impairment of the freedom of the
1971 Constitution Convention to approve the proposed
Constitution, its alleged lack of authority to incorporate certain
contested provisions thereof, the alleged lack of authority of the
President to create and establish Citizens' Assemblies "for the
purpose submitting to them the matter of ratification of the new
Constitution," the alleged "improper or inadequate submiss of the
proposed constitution," the "procedure for ratification adopted ...
through the Citizens Assemblies"; a maintaining that: 1) "(t)he
Court is without jurisdiction to act on these petitions"; 2) the
questions raised therein are "political in character and therefore
nonjusticiable"; 3) "there substantial compliance with Article XV of
the 1 Constitution"; 4) "(t)he Constitution was properly submitted
the people in a free, orderly and honest election; 5) "Proclamation
No. 1102, certifying the results of the election, is conclusive upon
the courts"; and 6) "(t)he amending process outlined in Article XV
of the 1935 Constitution is not exclusive of other modes of
amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed
their separate comment therein, alleging that "(t)he subject
matter" of said case "is a highly political question which, under
the circumstances, this ...Court would not be in a position to act
upon judicially," and that, in view of the opinions expressed by
three members of this Court in its decision in the plebiscite cases,
in effect upholding the validity of Proclamation No. 1102, "further
proceedings in this case may only be an academic exercise in
futility."
On February 5, 1973, the Court issued a resolution requiring
respondents in L-36236 to comment on the petition therein not
later than Saturday, February 10, 1973, and setting the case for
hearing on February 12, 1973, at 9:30 a.m. By resolution dated
February 7, 1973, this Court resolved to consider the comments of
the respondents in cases G.R. Nos. L-36142, L-36164, and L36165, 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 L36236. 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. L36164 and L-36165 filed their aforementioned notes on February
24, 1973, on which date the Solicitor General sought an extension
of time up to March 3, 1973, within which to file his notes, which
was granted, with the understanding that said notes shall include
his reply to the notes already filed by the petitioners in G.R. Nos.
L-36164 a L-36165. Counsel for the petitioners, likewise, moved
and were granted an extension of time, to expire on March 10,
1973, within which to file, as they did, their notes in reply to those
submitted by the Solicitor General on March 3, 1973. On March 21,
1973, petitioners in L-36165 filed a "Manifestation a Supplemental
Rejoinder," whereas the Office of the Solicitor General submitted
in all these cases a "Rejoinder Petitioners' Replies."
After deliberating on these cases, the members of the Court
agreed that each would write his own opinion and serve a copy
thereof on his colleagues, and this they did. Subsequently, the
Court discussed said opinions and votes were cast thereon. Such
individual opinions are appended hereto.
Accordingly, the writer will first express his person opinion on the
issues before the Court. After the exposition his aforesaid opinion,
the writer will make, concurrently with his colleagues in the Court,
a resume of summary of the votes cast by them in these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J.
Puyat and Jose Roy in G.R. No. L-36165, and, also, by the Solicitor
General, is predicated upon the fact that, in Our decision in the
plebiscite cases, Mr. Justice Barredo had expressed the view that
the 1935 Constitution had "pro tanto passed into history" and
"been legitimately supplanted by the Constitution now in force by
virtue of Proclamation No. 1102 ..."; that Mr. Justice Antonio did
not feel "that this Court competent to act" in said cases "in the
absence of any judicially discoverable and manageable standards"
and because "the access to relevant information is insufficient to
assure the correct determination of the issue," apart from the
circumstance that "the new constitution has been promulgated
and great interests have already arisen under it" and that the

political organ of the Government has recognized its provisions;

whereas, Mr. Justice Esguerra had postulated that "(w)ithout any
competent evidence ... about the circumstances attending the
holding" of the "referendum or plebiscite" thru the Citizens'
Assemblies, he "cannot say that it was not lawfully held" and that,
accordingly, he assumed "that what the proclamation (No. 1102)
says on its face is true and until overcome by satisfactory
evidence" he could not "subscribe to the claim that such plebiscite
was not held accordingly"; and that he accepted "as a fait
accompli that the Constitution adopted (by the 1971
Constitutional Convention) on November 30, 1972, has been duly
ratified.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say
that, under these circumstances, "it seems remote or improbable
that the necessary eight (8) votes under the 1935 Constitution,
and much less the ten (10) votes required by the 1972 (1973)
Constitution, can be obtained for the relief sought in the Amended
Petition" in G.R. No.
L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo
announced publicly, in open court, during the hearing of these
cases, that he was and is willing to be convinced that his
aforementioned opinion in the plebiscite cases should be
reconsidered and changed. In effect, he thus declared that he had
an open mind in connection with the cases at bar, and that in
deciding the same he would not necessarily adhere to said opinion
if the petitioners herein succeeded in convincing him that their
view should be sustained.
Secondly, counsel for the aforesaid respondents had apparently
assumed that, under the 1935 Constitution, eight (8) votes are
necessary to declare invalid the contested Proclamation No. 1102.
I do not believe that this assumption is borne out by any provision
of said Constitution. Section 10 of Article VIII thereof reads:
All cases involving the constitutionality of a treaty or law shall
be heard and decided by the Supreme Court in banc, and no
treaty or law may be declared unconstitutional without the
concurrence of two thirds of all the members of the Court.
Pursuant to this section, the concurrence of two-thirds of all the
Members of the Supreme Court is required only to declare "treaty
or law" unconstitutional. Construing said provision, in a resolution
dated September 16, 1949, then Chief Justice Moran, voicing
the unanimous view of the Members of this Court, postulated:
... There is nothing either in the Constitution or in the
Judiciary Act requiring the vote of eight Justices to nullify a
rule or regulation or an executive order issued by the
President. It is very significant that in the previous drafts of
section 10, Article VIII of the Constitution, "executive order"
and "regulation"were included among those that required for
their nullification the vote of two-thirds of all the members of
the Court. But "executive order" and "regulation" were
later deleted from the final draft (Aruego, The Framing of the
Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere
majority of six members of this Court is enough to nullify
them. 11
The distinction is not without reasonable foundation. The two
thirds vote (eight [8] votes) requirement, indeed, was made to
apply only to treaty and law, because, in these cases, the
participation of the two other departments of the government
the Executive and the Legislative is present, which
circumstance is absent in the case of rules, regulations and
executive orders. Indeed, a law (statute) passed by Congress is
subject to the approval or veto of the President, whose
disapproval cannot be overridden except by the vote of two-thirds
(2/3) of all members of each House of Congress. 12 A treaty is
entered into by the President with the concurrence of the
Senate,13 which is not required in the case of rules, regulations or
executive orders which are exclusive acts of the President. Hence,
to nullify the same, a lesser number of votes is necessary in the
Supreme Court than that required to invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive
orders issued by the President, the dictum applies with equal force
to executive proclamation, like said Proclamation No. 1102,
inasmuch as the authority to issue the same is governed by
section 63 of the Revised Administrative Code, which provides:
Administrative acts and commands of the (Governor-General)
President of the Philippines touching the organization or
mode of operation of the Government or rearranging or
readjusting any of the districts, divisions, parts or ports of the
(Philippine Islands) Philippines and all acts and commands
governing the general performance of duties by public
employees or disposing of issues of general concern shall be
made effective in executive orders.
Executive orders fixing the dates when specific laws,
resolutions, or orders are to have or cease to (have) effect
and any information concerning matters of public
moment determined by law, resolution, or executive orders,
may be promulgated in an executive proclamation, with all
the force of an executive order. 14
In fact, while executive order embody administrative acts or
commands of the President, executive proclamations are mainly
informative and declaratory in character, and so does counsel for
respondents Gil J. Puyat and Jose Roy maintain in G.R. No.
L-36165. 15 As consequence, an executive proclamation has no
more than "the force of an executive order," so that, for the

Supreme Court to declare such proclamation unconstitutional,

under the 1935 Constitution, the same number of votes needed to
invalidate an executive order, rule or regulation namely, six (6)
votes would suffice.
As regards the applicability of the provisions of the proposed new
Constitution, approved by the 1971 Constitutional Convention, in
the determination of the question whether or not it is now in force,
it is obvious that such question depends upon whether or not the
said new Constitution has been ratified in accordance with the
requirements of the 1935 Constitution, upon the authority of
which said Constitutional Convention was called and approved the
proposed Constitution. It is well settled that the matter of
ratification of an amendment to the Constitution should be settled
by applying the provisions of the Constitution in force at the time
of the alleged ratification, or the old Constitution. 16
II
Does the issue on the validity of Proclamation No. 1102 partake of
the nature of a political, and, hence, non-justiciable question?
The Solicitor General maintains in his comment the affirmative
view and this is his main defense. In support thereof, he alleges
that "petitioners would have this Court declare as invalid the New
Constitution of the Republic" from which he claims "this
Court now derives its authority"; that "nearly 15 million of our
body politic from the age of 15 years have mandated this
Constitution to be the New Constitution and the prospect of
unsettling acts done in reliance on it caution against interposition
of the power of judicial review"; that "in the case of the New
Constitution, the government has been recognized in accordance
with the New Constitution"; that "the country's foreign relations
are now being conducted in accordance with the new charter";
that "foreign governments have taken note of it"; that the
"plebiscite cases" are "not precedents for holding questions
regarding proposal and ratification justiciable"; and that "to
abstain from judgment on the ultimate issue of constitutionality is
not to abdicate duty."
At the outset, it is obvious to me that We are not being asked to
"declare" the new Constitution invalid. What petitioners dispute is
the theory that it has been validly ratified by the people,
especially that they have done so in accordance with Article XV of
the 1935 Constitution. The petitioners maintain that the
conclusion reached by the Chief Executive in the dispositive
portion of Proclamation No. 1102 is not borne out by the
whereases preceding the same, as the predicates from which said
conclusion was drawn; that the plebiscite or "election" required in
said Article XV has not been held; that the Chief Executive has no
authority, under the 1935 Constitution, to dispense with said
election or plebiscite; that the proceedings before the Citizens'
Assemblies did not constitute and may not be considered as such
plebiscite; that the facts of record abundantly show that the
aforementioned Assemblies could not have been held throughout
the Philippines from January 10 to January 15, 1973; and that, in
any event, the proceedings in said Assemblies are null and void as
an alleged ratification of the new Constitution proposed by the
1971 Constitutional Convention, not only because of the
circumstances under which said Assemblies had been created and
held, but, also, because persons disqualified to vote under Article
V of the Constitution were allowed to participate therein, because
the provisions of our Election Code were not observed in said
Assemblies, because the same were not held under the
supervision of the Commission on Elections, in violation of section
2 of Article X of the 1935 Constitution, and because the existence
of Martial Law and General Order No. 20, withdrawing or
suspending the limited freedom to discuss the merits and
demerits of said proposed Constitution, impaired the people's
freedom in voting thereon, particularly a viva voce, as it was done
in many instances, as well as their ability to have a reasonable
knowledge of the contents of the document on which they were
allegedly called upon to express their views.
Referring now more specifically to the issue on whether the new
Constitution proposed by the 1971 Constitutional Convention has
been ratified in accordance with the provisions of Article XV of the
1935 Constitution is a political question or not, I do not hesitate to
state that the answer must be in the negative. Indeed, such is the
position taken by this Court, 17 in an endless line of decisions, too
long to leave any room for possible doubt that said issue is
inherently and essentially justiciable. Such, also, has been the
consistent position of the courts of the United States of America,
whose decisions have a persuasive effect in this jurisdiction, our
constitutional system in the 1935 Constitution being patterned
after that of the United States. Besides, no plausible reason has,
to my mind, been advanced to warrant a departure from said
position, consistently with the form of government established
under said Constitution..
Thus, in the aforementioned plebiscite cases, 18 We rejected the
theory of the respondents therein that the question whether
Presidential Decree No. 73 calling a plebiscite to be held on
January 15, 1973, for the ratification or rejection of the proposed
new Constitution, was valid or not, was not a proper subject of
judicial inquiry because, they claimed, it partook of a political
nature, and We unanimously declared that the issue was
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
in Mabanag v. Lopez Vito. 23 Hence, respondents herein urge Us to
reconsider the action thus taken by the Court and to revert to and
follow the views expressed in Barcelon v. Baker and Mabanag v.
Lopez Vito. 24
The reasons adduced in support thereof are, however,
substantially the same as those given in support of the politicalquestion theory advanced in said habeas corpus and plebiscite
cases, which were carefully considered by this Court and found by
it to be legally unsound and constitutionally untenable. As a
consequence, Our decision in the aforementioned habeas
corpus cases partakes of the nature and effect of a stare decisis,
which gained added weight by its virtual reiteration in the
plebiscite cases.
The reason why the issue under consideration and other issues of
similar character are justiciable, not political, is plain and simple.
One of the principal bases of the non-justiciability of so-called
political questions is the principle of separation of powers
characteristic of the Presidential system of government the
functions of which are classified or divided, by reason of their
nature, into three (3) categories, namely: 1) those involving the
making of laws, which are allocated to the legislative department;
2) those concerned mainly with the enforcement of such laws and
of judicial decisions applying and/or interpreting the same, which
belong to the executive department; and 3) those dealing with the
settlement of disputes, controversies or conflicts involving rights,
duties or prerogatives that are legally demandable and
enforceable, which are apportioned to courts of justice. Within its
own sphere but only within such sphere each department is
supreme and independent of the others, and each is devoid of
authority, not only to encroach upon the powers or field of action
assigned to any of the other departments, but, also, to inquire into
or pass upon the advisability or wisdom of the acts performed,
measures taken or decisions made by the other departments
provided that such acts, measures or decisions are withinthe area
allocated thereto by the Constitution. 25
This principle of separation of powers under the presidential
system goes hand in hand with the system of checks and
balances, under which each department is vested by the
Fundamental Law with some powers to forestall, restrain or arrest
a possible or actual misuse or abuse of powers by the other
departments. Hence, the appointing power of the Executive, his
pardoning power, his veto power, his authority to call the
Legislature or Congress to special sessions and even to prescribe
or limit the object or objects of legislation that may be taken up in
such sessions, etc. Conversely, Congress or an agency or arm
thereof such as the commission on Appointments may
approve or disapprove some appointments made by the President.
It, also, has the power of appropriation, to "define, prescribe, and
apportion the jurisdiction of the various courts," as well as that of
impeachment. Upon the other hand, under the judicial power
vested by the Constitution, the "Supreme Court and ... such
inferior courts as may be established by law," may settle or decide
with finality, not only justiciable controversies between private
individuals or entities, but, also, disputes or conflicts between a
private individual or entity, on the one hand, and an officer or
branch of the government, on the other, or between two (2)
officers or branches of service, when the latter officer or branch is
charged with acting without jurisdiction or in excess thereof or in
violation of law. And so, when a power vested in said officer or
branch of the government is absolute orunqualified, the acts in
the exercise of such power are said to be political in nature, and,
consequently, non-justiciable or beyond judicial review. Otherwise,
courts of justice would be arrogating upon themselves a power
conferred by the Constitution upon another branch of the service
to the exclusion of the others. Hence, in Taada v. Cuenco, 26 this
Court quoted with approval from In re McConaughy, 27 the
following:
"At the threshold of the case we are met with the assertion
that the questions involved are political, and not judicial. If
this is correct, the court has no jurisdiction as the certificate
of the state canvassing board would then be final,
regardless of the actual vote upon the amendment. The
question thus raised is a fundamental one; but it has been
so often decided contrary to the view contended for by the
Attorney General that it would seem to be finally settled.
xxx xxx xxx
"... What is generally meant, when it is said that a question
is political, and not judicial, is that it is a matter which is to
be exercised by the people in their primary political
capacity, or that it has been specifically delegated to some
other department or particular officer of the
government, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re
Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green
vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher
vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St.
Rep. 220. Thus theLegislature may in its
discretion determine whether it will pass law or submit a
proposed constitutional amendment to the people. The
courts have no judicial control over such matters, not merely

because they 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. His discretionary acts cannot be controllable, not
primarily because they are of a politics nature, but because
the Constitution and laws have placed the particular matter
under his control.But every officer under constitutional
government must act accordingly to law and subject its
restrictions, and every departure therefrom or disregard
thereof must subject him to that restraining and controlling
power of the people, acting through the agency of the
judiciary; for it must be remembered that the people act
through courts, as well as through the executive or the
Legislature. One department is just as representative as the
other, and the judiciary is the department which is charged
with the special duty of determining the limitations which
the law places upon all official action. The recognition of this
principle, unknown except in Great Britain and America, is
necessary, to "the end that the government may be one of
laws and not of men" words which Webster said were the
greatest contained in any written constitutional document."
(Emphasis supplied.)
and, in an attempt to describe the nature of a political question in
terms, it was hoped, understandable to the laymen, We added
that "... the term "political question" connotes, in legal parlance,
what it means in ordinary parlance, namely, a question of policy"
in matters concerning the government of a State, as a body
politic. "In other words, in the language of Corpus Juris Secundum
(supra), it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the
government." It is concerned with issues dependent upon
the wisdom, not legality, of a particular measure."
Accordingly, when the grant of power is qualified, conditional or
subject to limitations, the issue on whether or not the prescribed
qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem
being one of legality or validity of the contested act, not its
wisdom. Otherwise, said qualifications, conditions or limitations
particularly those prescribed or imposed by the Constitution
would be set at naught. What is more, the judicial inquiry into
such issue and the settlement thereof are the mainfunctions of
courts of justice under the Presidential form of government
adopted in our 1935 Constitution, and the system of checks and
balances, one of its basic predicates. As a consequence, We have
neither the authority nor the discretion to decline passing upon
said issue, but are under the ineluctable obligation made
particularly more exacting and peremptory by our oath, as
members of the highest Court of the land, to support and defend
the Constitution to settle it. This explains why, in Miller v.
Johnson, 28 it was held that courts have a "duty, rather than a
power", to determine whether another branch of the government
has "kept within constitutional limits." Not satisfied with this
postulate, the court went farther and stressed that, if the
Constitution provides how it may be amended as it is in our
1935 Constitution "then, unless the manner is followed, the
judiciary as the interpreter of that constitution, will declare the
amendment invalid." 29 In fact, this very Court speaking through
Justice Laurel, an outstanding authority on Philippine
Constitutional Law, as well as one of the highly respected and
foremost leaders of the Convention that drafted the 1935
Constitution declared, as early as July 15, 1936, that "(i)n times
of social disquietude or political excitement, the great landmarks
of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, thejudicial department is
the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several
departments" of the government. 30
The Solicitor General has invoked Luther v. Borden 31 in support of
his stand that the issue under consideration is non-justiciable in
nature. Neither the factual background of that case nor the action
taken therein by the Federal Supreme Court has any similarity
with or bearing on the cases under consideration.
Luther v. Borden was an action for trespass filed by Luther with
the Circuit Court of the United States against Borden and others
for having forcibly entered into Luther's house, in Rhode Island,
sometime in 1842. The defendants who were in the military
service of said former colony of England, alleged in their defense
that they had acted in obedience to the commands of a superior
officer, because Luther and others were engaged in a conspiracy
to overthrow the government by force and the state had been
placed by competent authority under Martial Law. Such authority
was the charter government of Rhode Island at the time of the
Declaration of Independence, for unlike other states which
adopted a new Constitution upon secession from England
Rhode Island retained its form of government under a British
Charter, making only such alterations, by acts of the Legislature,
as were necessary to adapt it to its subsequent condition as an
independent state. It was under this form of government when
Rhode Island joined other American states in the Declaration of
Independence and, by subsequently ratifying the Constitution of
the United States, became a member of the Union. In 1843, it
adopted a new Constitution.

Prior thereto, however, many citizens had become dissatisfied

with the charter government. Memorials addressed by them to the
Legislature having failed to bring about the desired effect,
meetings were held and associations formed by those who
belonged to this segment of the population which eventually
resulted in a convention called for the drafting of a new
Constitution to be submitted to the people for their adoption or
rejection. The convention was not authorized by any law of the
existing government. The delegates to such convention framed a
new Constitution which was submitted to the people. Upon the
return of the votes cast by them, the convention declared that
said Constitution had been adopted and ratified by a majority of
the people and became the paramount law and Constitution of
Rhode Island.
The charter government, which was supported by a large number
of citizens of the state, contested, however, the validity of said
proceedings. This notwithstanding, one Thomas W. Dorr, who had
been elected governor under the new Constitution of the rebels,
prepared to assert authority by force of arms, and many citizens
assembled to support him. Thereupon, the charter government
passed an Act declaring the state under Martial Law and adopted
measures to repel the threatened attack and subdue the rebels.
This was the state of affairs when the defendants, who were in the
military service of the charter government and were to arrest
Luther, for engaging in the support of the rebel government
which was never able to exercise any authority in the state
broke into his house.
Meanwhile, the charter government had taken measures to call its
own convention to revise the existing form of government.
Eventually, a new constitution was drafted by a convention held
under the authority of the charter government, and thereafter was
adopted and ratified by the people. "(T)he times and places at
which the votes were to be given, the persons who were to
receive and return them, and the qualifications of the
voters having all been previously authorized and provided for by
law passed by the charter government," the latter formally
surrendered all of its powers to the new government, established
under its authority, in May 1843, which had been in
operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a
military force, had made an unsuccessful attempt to take
possession of the state arsenal in Providence, but he was
repulsed, and, after an "assemblage of some hundreds of armed
men under his command at Chepatchet in the June following,
which dispersed upon approach of the troops of the old
government, no further effort was made to establish" his
government. "... until the Constitution of 1843" adopted under
the auspices of the charter government "went into operation,
the charter government continued to assert its authority and
exercise its powers and to enforce obedience throughout the
state ... ."
Having offered to introduce evidence to prove that the
constitution of the rebels had been ratified by the majority of the
people, which the Circuit Court rejected, apart from rendering
judgment for the defendants, the plaintiff took the case for review
to the Federal Supreme Court which affirmed the action of the
Circuit Court, stating:
It is worthy of remark, however, when we are referring to the
authority of State decisions, that the trial of Thomas W. Dorr
took place after the constitution of 1843 went into
operation. The judges who decided that case held their
authority under that constitution and it is admitted on all
hands that it was adopted by the people of the State, and is
the lawful and established government. It is the decision,
therefore, of a State court, whose judicial authority to decide
upon the constitution and laws of Rhode Island is not
questioned by either party to this controversy, although the
government under which it acted was framed and adopted
under the sanction and laws of the charter government.
The point, then, raised here has been already decided by the
courts of Rhode Island. The question relates, altogether, to
the constitution and laws of that State, and the well settled
rule in this court is, that the courts of the United States adopt
and follow the decisions of the State courts in questions
which concern merely the constitution and laws of the State.
Upon what ground could the Circuit Court of the United
States which tried this case have departed from this rule, and
disregarded and overruled the decisions of the courts of
Rhode Island?Undoubtedly the courts of the United States
have certain powers under the Constitution and laws of the
United States which do not belong to the State courts.
But the power of determining that a State government has
been lawfully established, which the courts of the State
disown and repudiate, is not one of them. Upon such a
question the courts of the United States are bound to follow
the decisions of the State tribunals, and must therefore
regard the charter government as the lawful and established
government during the time of this contest. 32
It is thus apparent that the context within which the case
of Luther v. Borden was decided is basically and fundamentally
different from that of the cases at bar. To begin with, the case did
not involve a federal question, but one purely municipal in nature.
Hence, the Federal Supreme Court was "bound to follow the
decisions of the State tribunals" of Rhode Island upholding the
constitution adopted under the authority of the charter

government. Whatever else was said in that case constitutes,

therefore, an obiter dictum. Besides, no decision analogous to that
rendered by the State Court of Rhode Island exists in the cases at
bar. Secondly, the states of the Union have a measure of internal
sovereignty upon which the Federal Government may not
encroach, whereas ours is a unitary form of government, under
which our local governments derive their authority from the
national government. Again, unlike our 1935 Constitution, the
charter or organic law of Rhode Island contained noprovision on
the manner, procedure or conditions for its amendment.
Then, too, the case of Luther v. Borden hinged more on the
question of recognition of government, than on recognition
of constitution, and there is a fundamental difference between
these two (2) types of recognition, the first being generally
conceded to be a political question, whereas the nature of the
latter depends upon a number of factors, one of them being
whether the new Constitution has been adopted in the manner
prescribed in the Constitution in force at the time of the purported
ratification of the former, which
is essentially a justiciablequestion. There was, in Luther v. Borden,
a conflict between two (2) rival governments, antagonistic to each
other, which is absent in the present cases. Here, the Government
established under the 1935 Constitution is the very same
government whose Executive Department has urged the adoption
of the new or revised Constitution proposed by the 1971
Constitutional Convention and now alleges that it has been ratified
by the people.
In short, the views expressed by the Federal Supreme Court
in Luther v. Borden, decided in 1849, on mattersother than those
referring to its power to review decisions of a state court
concerning the constitution and government of that state, not the
Federal Constitution or Government, are manifestly neither,
controlling, nor even persuasive in the present cases, having as
the Federal Supreme Court admitted no authority whatsoever
to pass upon such matters or to review decisions of said state
court thereon. In fact, referring to that case, the Supreme Court of
Minnessota had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by
those who assert that the courts have no power to determine
questions of a political character. It is interesting historically,
but it has not the 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
Baker v. Carr, 34 cited by respondents, involved an action to annul
a Tennessee statute apportioning the seats in the General
Assembly among the counties of the State, upon the theory that
the legislation violated the equal protection clause. A district court
dismissed the case upon the ground, among others, that the issue
was a political one, but, after a painstaking review of the
jurisprudence on the matter, the Federal Supreme
Court reversed the appealed decision and held that said issue was
justiciable and non-political, inasmuch as:"... (d)eciding whether a
matter has in any measure been committed by the Constitution
to another branch of government, or whether the action of that
branch exceeds whatever authority has been committed, is itself a
delicate exercise in constitutional interpretation, and is a
responsibility of this Court as ultimate interpreter of the
Constitution ... ."
Similarly, in Powell v. McCormack, 35 the same Court, speaking
through then Chief Justice Warren, reversed a decision of the
Court of Appeals of New York affirming that of a Federal District
Court, dismissing Powell's action for a declaratory judgment
declaring thereunder that he whose qualifications were
uncontested had been unlawfully excluded from the 90th
Congress of the U.S. Said dismissal was predicated upon the
ground, inter alia, that the issue was political, but the Federal
Supreme Court held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of
American jurisprudence on the matter. Owing to the lucidity of its
appraisal thereof, We append the same to this opinion as Annex A
thereof.
After an, exhaustive analysis of the cases on this subject, the
Court concluded:
The authorities are thus practically uniform in holding that
whether a constitutional amendment has been properly
adopted according to the requirements of an existing
Constitution is a judicial question. There can be little doubt
that the consensus of judicial opinion is to the effect that it is
the absolute duty of the judiciary to determine whether the
Constitution has been amended in the manner required by
the Constitution, unless a special tribunal has been created to
determine the question; and even then many of the courts
hold that the tribunal cannot be permitted to illegally amend
the organic law. ... . 36
In the light of the foregoing, and considering that Art. XV of our
1935 Constitution prescribes the method or procedure for its
amendment, it is clear to my mind that the question whether or
not the revised Constitution drafted by the 1971 Constitutional
Convention has been ratified in accordance with said Art. XV is a
justiciable one and non-political in nature, and that it is not only
subject to judicial inquiry, but, also, that it is the Court's
boundenduty to decide such question.

The Supreme Court of the United States has meaningfully

postulated that "the courts cannot reject as 'no law suit' "
because it allegedly involves a political question "a bona fide
controversy as to whether some action denominated
"political" exceeds constitutional authority." 37
III
Has the proposed new or revised Constitution been ratified
conformably to said Art. XV of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon ground:
1) that the President "is without authority to create the Citizens'
Assemblies" through which, respondents maintain, the proposed
new Constitution has been ratified; that said Assemblies "are
without power to approve the proposed Constitution"; 3) that the
President "is without power to proclaim the ratification by the
Filipino people of the proposed Constitution"; and 4) that "the
election held (in the Citizens' Assemblies) to ratify the proposed
Constitution was not a free election, hence null and void."
Apart from substantially reiterating these grounds support of said
negative view, the petitioners in L-36164 contend: 1) that the
President "has no power to call a plebiscite for the ratification or
rejection" of the proposed new Constitution or "to appropriate
funds for the holding of the said plebiscite"; 2) that the proposed
new or revised Constitution "is vague and incomplete," as well as
"contains provisions which are beyond the powers of the 1971
Convention to enact," thereby rendering it "unfit for ... submission
the people;" 3) that "(t)he period of time between November 1972
when the 1972 draft was approved and January 11-15, 1973,"
when the Citizens' Assemblies supposedly ratified said draft, "was
too short, worse still, there was practically no time for the Citizens'
Assemblies to discuss the merits of the Constitution which the
majority of them have not read a which they never knew would be
submitted to them ratification until they were asked the question
"do you approve of the New Constitution?" during the said days
of the voting"; and that "(t)here was altogether no freedom
discussion and no opportunity to concentrate on the matter
submitted to them when the 1972 draft was supposedly submitted
to the Citizens' Assemblies for ratification."
Petitioner in L-36236 added, as arguments in support of the
negative view, that : 1) "(w)ith a government-controlled press,
there can never be a fair and proper submission of the proposed
Constitution to the people"; and 2) Proclamation No. 1102 is null
and void "(i)nasmuch as the ratification process" prescribed "in
the 1935 Constitution was not followed."
Besides adopting substantially some of the grounds relied upon by
the petitioners in the above-mentioned cases, the petitioners in L36283 argue that "(t)he creation of the Citizens' Assemblies as the
vehicle for the ratification of the Constitution was a deception
upon the people since the President announced the postponement
of the January 15, 1973 plebiscite to either February 19 or March
5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the
negative view have already been set forth earlier in this opinion.
Hence, it is unnecessary to reproduce them here. So it is, with
respect to the positions taken in L-36165 by counsel for therein
respondents Gil J. Puyat and Jose Roy although more will be said
later about them and by the Solicitor General, on behalf of the
other respondents in that case and the respondents in the other
cases.
1. What is the procedure prescribed by the 1935 Constitution for
its amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are
essential, namely:
1. That the amendments to the Constitution be proposed either by
Congress or by a convention called for that purpose, "by a vote of
three-fourths of all the Members of the Senate and the House of
Representatives voting separately," but "in joint session
assembled";
2. That such amendments be "submitted to the people for their
ratification" at an "election"; and
3. That such amendments be "approved by a majority of the votes
cast" in said election.
Compliance with the first requirement is virtually conceded,
although the petitioners in L-36164 question the authority of the
1971 Constitutional Convention to incorporate certain provisions
into the draft of the new or revised Constitution. The main issue in
these five (5) cases hinges, therefore, on whether or not the last
two (2) requirements have been complied with.
2. Has the contested draft of the new or revised Constitution been
submitted to the people for their ratification conformably to Art.
XV of the Constitution?
In this connection, other provisions of the 1935 Constitution
concerning "elections" must, also, be taken into account, namely,
section I of Art. V and Art. X of said Constitution. The former reads:
Section 1. Suffrage may be exercised by male citizens of the
Philippines not otherwise disqualified by law, who are twentyone years of age or over and are able to read and write, and
who shall have resided in the Philippines for one year and in
the municipality wherein they propose to vote for at least six
months preceding the election. The National Assembly shall
extend the right of suffrage to women, if in a plebiscite which
shall be held for that purpose within two years after the
adoption of this Constitution, not less than three hundred

thousand women possessing the necessary qualifications

shall vote affirmatively on the question.
Sections 1 and 2 of Art. X of the Constitution ordain in part:
Section 1. There shall be an independent Commission on
Elections composed of a Chairman and two other Members to
be appointed by the President with the consent of the
Commission on Appointments, who shall hold office for a term
of nine years and may not be reappointed. ...
xxx xxx xxx
Sec. 2. The Commission on Elections shall
have exclusive charge of the enforcement and administration
of all laws relative to the conduct of elections and shall
exercise all other functions which may be conferred upon it by
law. It shall decide, save those involving the right to
vote, alladministrative questions, affecting elections, including
the determination of the number and location of polling places,
and the appointment of election inspectors and of other
election officials. All law enforcement agencies and
instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose
of insuring fee, orderly, and honest elections. The decisions,
orders, and rulings of the Commission shall be subject to
review by the Supreme Court.
xxx xxx xxx

39

a. Who may vote in a plebiscite under Art. V of the

Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a
limitation upon the exercise of the right of suffrage. They claim
that no other persons than "citizens of the Philippines not
otherwise disqualified by law, who are twenty-one years of age or
over and are able to read and write, and who shall have resided in
the Philippines for one year and in the municipality wherein they
propose to vote for at least six months preceding the election,"
may exercise the right of suffrage in the Philippines. Upon the
other hand, the Solicitor General contends that said provision
merely guarantees the right of suffrage to persons possessing the
aforementioned qualifications and none of the disqualifications,
prescribed by law, and that said right may be vested by
competent authorities in persons lacking some or all of the
aforementioned qualifications, and possessing some of the
aforesaid disqualifications. In support of this view, he invokes the
permissive nature of the language "(s)uffrage may be
exercised" used in section 1 of Art. V of the Constitution, and
the provisions of the Revised Barrio Charter, Republic Act No.
3590, particularly sections 4 and 6 thereof, providing that citizens
of the Philippines "eighteen years of age or over," who are
registered in the list of barrio assembly members, shall be
members thereof and may participate as such in the plebiscites
prescribed in said Act.
I cannot accept the Solicitor General's theory. Art. V of the
Constitution declares who may exercise the right of suffrage, so
that those lacking the qualifications therein prescribed
may not exercise such right. This view is borne out by the records
of the Constitutional Convention that drafted the 1935
Constitution. Indeed, section 1 of Art. V of the 1935 Constitution
was largely based on the report of the committee on suffrage of
the Convention that drafted said Constitution which report was, in
turn, "strongly influenced by the election laws then in force in the
Philippines ... ." 40 " Said committee had recommended: 1) "That
the right of suffrage should exercised only by male citizens of the
Philippines." 2) "That should be limited to those who could read
and write." 3) "That the duty to vote should be made obligatory."
It appears that the first recommendation was discussed
extensively in the Convention, and that, by way of compromise, it
was eventually agreed to include, in section 1 of Art. V of the
Constitution, the second sentence thereof imposing upon the
National Assembly established by the original Constitution
instead of the bicameral Congress subsequently created by
amendment said Constitution the duty to "extend the right of
suffrage women, if in a plebiscite to, be held for that purpose
within two years after the adoption of this Constitution, not less
than three hundred thousand women possessing the necessary
qualifications shall vote affirmatively on the question." 41
The third recommendation on "compulsory" voting was, also
debated upon rather extensively, after which it was rejected by
the Convention. 42 This accounts, in my opinion, for the permissive
language used in the first sentence of said Art. V. Despite some
debates on the age qualification amendment having been
proposed to reduce the same to 18 or 20, which were rejected,
and the residence qualification, as well as the disqualifications to
the exercise of the right of suffrage the second
recommendation limiting the right of suffrage to those who could
"read and write" was in the language of Dr. Jose M. Aruego, one
of the Delegates to said Convention "readily approved in the
Convention without any dissenting vote," although there was
some debate on whether the Fundamental Law should specify the
language or dialect that the voter could read and write, which was
decided in the negative. 43
What is relevant to the issue before Us is the fact that the
constitutional provision under consideration was meant to be and
is a grant or conferment of a right to persons possessing the
qualifications and none of the disqualifications therein mentioned,
which in turn, constitute a limitation of or restriction to said right,
and cannot, accordingly, be dispensed with, except by

constitutional amendment. Obviously, every such constitutional

grant or conferment of a right is necessarily a negation of the
authority of Congress or of any other branch of the Government to
deny said right to the subject of the grant and, in this sense
only, may the same partake of the nature of a guarantee. But, this
does not imply not even remotely, that the Fundamental Law
allows Congress or anybody else to vest in those lacking the
qualifications and having the disqualifications mentioned in the
Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage
responsible for the adoption of section 1 of Art. V of the
Constitution was "strongly influenced by the election laws then in
force in the Philippines." Our first Election Law was Act 1582,
passed on January 9, 1907, which was partly amended by Acts
1669, 1709, 1726 and 1768, and incorporated into the
Administrative Code of 1916 Act 2657 as chapter 20 thereof,
and then in the Administrative Code of 1917 Act 2711 as
chapter 18 thereof, which, in turn, was amended by Act 3387,
approved on December 3, 1927. Sections 431 and 432 of said
Code of 1917, prescribing, respectively, the qualifications for and
disqualifications from voting, are quoted below. 44 In all of these
legislative acts, the provisions concerning the qualifications of
voters partook of the nature of a grant or recognition of the right
of suffrage, and, hence, of 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.
This view is further bolstered by the fact that the 1971
Constitutional Convention sought the submission to a plebiscite of
a "partial amendment" to said section 1 of Art. V of the 1935
Constitution, by reducing the voting age from twenty-one (21)
years to eighteen (18) years, which, however, did not materialize
on account of the decision of this Court in Tolentino v. Commission
on Elections, 45 granting the writs, of prohibition and injunction
therein applied for, upon the ground that, under the Constitution,
all of the amendments adopted by the Convention should be
submitted in "an election" or a single election, not separately or in
several or distinct elections, and that the proposed amendment
sought to be submitted to a plebiscite was not even a
complete amendment, but a "partial amendment" of said section
1, which could be amended further, after its ratification, had the
same taken place, so that the aforementioned partial amendment
was, for legal purposes, no more than
a provisional or temporary amendment. Said partial amendment
was predicated upon the generally accepted contemporary
construction that, under the 1935 Constitution, persons below
twenty-one (21) years of age could not exercise the right of
suffrage, without a previous amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members
of barrio assemblies may vote in barrio assembly plebiscites is, to
say the least, a debatable one. Indeed, there seems to be a
conflict between the last paragraph of said section 6 of Rep. Act
No. 3590, 46 pursuant to which the "majority vote of all the barrio
assemblymembers" (which include all barrio residents 18 years of
age or over, duly registered in the list of barrio assembly
members) is necessary for the approval, in an assembly plebiscite,
of "any budgetary, supplemental appropriations or special tax
ordinances," whereas, according to the paragraph preceding the
penultimate one of said section, 47 "(a)ll duly registered barrio
assembly members qualified to vote" who, pursuant to section
10 of the same Act, must be citizens "of the Philippines, twentyone years of age or over, able to read and write," and residents
the barrio "during the six months immediately preceding election,
duly registered in the list of voters" and " otherwise
disqualified ..." just like the provisions of present and past
election codes of the Philippines and Art. V of the 1935
Constitution "may vote in the plebiscite."
I believe, however, that the apparent conflict should resolved in
favor of the 21-year-old members of the assembly, not only
because this interpretation is in accord with Art. V the
Constitution, but, also, because provisions of a Constitution
particularly of a written and rigid one, like ours generally accorded
a mandatory status unless the intention to the contrary is
manifest, which is not so as regards said Art. V for otherwise
they would not have been considered sufficiently important to be
included in the Fundamental Law of the land. 48Besides, it would
be illogical, if not absurd, believe that Republic Act No. 3590
requires, for the most important measures for which it demands
in addition to favorable action of the barrio council the approval
of barrio assembly through aplebiscite, lesser qualifications than
those prescribed in dealing with ordinary measures for which such
plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935
Constitution intended section 1 of Art. V thereof to apply only to
elections of public officers, not to plebiscites for the ratification of
amendments to the Fundamental Law or revision thereof, or of an
entirely new Constitution, and permit the legislature to require
lesser qualifications for such ratification, notwithstanding the fact
that the object thereof much more important if not
fundamental, such as the basic changes introduced in the draft of
the revised Constitution adopted by the 1971 Constitutional

Convention, which a intended to be in force permanently, or, at

least, for many decades, and to affect the way of life of the nation
and, accordingly, demands greater experience and maturity on
the part of the electorate than that required for the election of
public officers, 49 whose average term ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21
years, regardless of whether or not they possessed the other
qualifications laid down in both the Constitution and the present
Election Code, 50 and of whether or not they are disqualified under
the provisions of said Constitution and Code, 51 or those of
Republic Act No. 3590, 52 have participated and voted in the
Citizens' Assemblies that have allegedly ratified the new or
revised Constitution drafted by the 1971 Constitutional
Convention.
In fact, according to the latest official data, the total number of
registered voters 21 years of age or over in the entire Philippines,
available in January 1973, was less than 12 million. Yet,
Proclamation No. 1102 states that 14,976,56 "members of all the
Barangays (Citizens Assemblies) voted for the adoption of the
proposed Constitution, as against ... 743,869 who voted for its
rejection," whereas, on the question whether or not the people
still wanted a plebiscite to be called to ratify the new Constitution,
"... 14,298,814 answered that there was no need for a plebiscite
and that the vote of the Barangays (Citizens Assemblies) should
be considered as a vote in a plebiscite." In other words, it is
conceded that the number of people who allegedly voted at the
Citizens' Assemblies for exceeded the number of registered
voters under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens'
Assemblies and We have more to say on this point in
subsequent pages were fundamentally irregular, in that persons
lacking the qualifications prescribed in section 1 of Art. V of the
Constitution were allowed to vote in said Assemblies. And, since
there is no means by which the invalid votes of those less than 21
years of age can be separated or segregated from those of the
qualified voters, the proceedings in the Citizens' Assemblies must
be considered null and void. 53
It has been held that "(t)he power to reject an entire poll ... should
be exercised ... in a case where it is impossibleto ascertain with
reasonable certainty the true vote," as where "it is impossible to
separate the legal votes from the illegal or spurious ... ." 54
In Usman v. Commission on Elections, et al.,

55

We held:

Several circumstances, defying exact description and

dependent mainly on the factual milieu of the particular
controversy, have the effect of destroying the integrity and
authenticity of disputed election returns and of avoiding
their prima facie value and character. If satisfactorily proven,
although in a summary proceeding, such circumstances as
alleged by the affected or interested parties, stamp the
election returns with the indelible mark of falsity and
irregularity, and, consequently, of unreliability, and justify
their exclusion from the canvass.
Then, too, the 1935 Constitution requires "a majority of the votes
cast" for a proposed amendment to the Fundamental Law to be
"valid" as part thereof, and the term "votes cast" has a wellsettled meaning.
The term "votes cast" ... was held in Smith v. Renville County
Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used
as an equivalent of "ballots cast." 56
The word "cast" is defined as "to deposit formally or
officially." 57
It seems to us that a vote is cast when
a ballot is deposited indicating a "choice." ... The word "cast"
means "deposit (a ballot) formally or officially ... .
... In simple words, we would define a "vote cast" as the
exercise on a ballot of the choice of the voter on the measure
proposed. 58
In short, said Art. XV envisages with the term "votes cast"
choices made on ballots not orally or by raising by the
persons taking part in plebiscites. This is but natural and logical,
for, since the early years of the American regime, we had adopted
the Australian Ballot System, with its major characteristics,
namely, uniform official ballots prepared and furnished by the
Government and secrecy in the voting, with the advantage of
keeping records that permit judicial inquiry, when necessary, into
the accuracy of the election returns. And the 1935 Constitution
has been consistently interpreted in all plebiscites for the
ratification rejection of proposed amendments thereto, from 1935
to 1967. Hence, the viva voce voting in the Citizens' Assemblies
was and is null and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision
indispensable; essential requisites)
Just as essential as compliance with said Art. V of the 19
Constitution is that of Art. X thereof, particularly its sections 1 and
2. Indeed, section 1 provides that "(t)here shall be
an independent Commission on Elections ... ." The point to be
stressed here is the term "independent." Indeed, why was the
term used?
In the absence of said constitutional provision as to the
independence of the Commission, would it have been depends
upon either Congress or the Judiciary? The answer must be the
negative, because the functions of the Commission

"enforcement and administration" of election laws are neither

legislative nor judicial in nature, and, hence, beyond the field
allocated to either Congress or courts of justice. Said functions are
by their nature essentially executive, for which reason, the
Commission would be under the "control" of the President,
pursuant to section 10, paragraph (1) of Art. VII of the
Constitution, if Art. X thereof did not explicitly declare that it (the
Commission) is an "independent" body. In other words, in
amending the original 1935 Constitution, by inserting therein said
Art. X, on the Commission on Elections, the purpose was to make
said Commission independent principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of
the Commission on Elections as a constitutional organ, election
laws in the Philippines were enforced by the then Department of
the Interior, through its Executive Bureau, one of the offices under
the supervision and control of said Department. The same like
other departments of the Executive Branch of the Government
was, in turn, under the control of the Chief Executive, before the
adoption of the 1935 Constitution, and had been until the
abolition of said Department, sometime ago under the control
of the President of the Philippines, since the effectivity of said
Fundamental Law. Under the provisions thereof, the Executive
could so use his power of control over the Department of the
Interior and its Executive Bureau as to place the minority party at
such a great, if not decisive, disadvantage, as to deprive it, in
effect, of the opportunity to defeat the political party in power,
and, hence, to enable the same to perpetuate itself therein. To
forestall this possibility, the original 1935 Constitution was
amended by the establishment of the Commission on Elections as
a constitutional body independent primarily of the President of the
Philippines.
The independence of the Commission was sought to be
strengthened by the long term of office of its members nine (9)
years, except those first appointed 59 the longest under the
Constitution, second only to that of the Auditor General 60; by
providing that they may not be removed from office except by
impeachment, placing them, in this respect, on the same plane as
the President, the Vice-President, the Justices of the Supreme
Court and the Auditor General; that they may not be reappointed;
that their salaries, "shall be neither increased nor diminished
during their term of office"; that the decisions the Commission
"shall be subject to review by the Supreme Court" only 61; that
"(n)o pardon, parole, or suspension sentence for the violation of
any election law may be granted without the favorable
recommendation of the Commission" 62; and, that its chairman and
members "shall not, during the continuance in office, engage in
the practice of any profession or intervene, directly or indirectly, in
the management or control of any private enterprise which in
anyway may affected by the functions of their office; nor shall
they, directly or indirectly, be financially interested in any contract
with the Government or any subdivision or instrumentality
thereof." 63 Thus, the framers of the amendment to the original
Constitution of 1935 endeavored to do everything possible protect
and insure the independence of each member of the Commission.
With respect to the functions thereof as a body, section 2 of said
Art. X ordains that "(t)he Commission on Elections shall
have exclusive charge of the enforcement and administration all
laws relative to the conduct of elections," apart from such other
"functions which may be conferred upon it by law." It further
provides that the Commission "shall decide, save those involving
the right to vote, all administrative question affecting elections,
including the determination of the number and location of polling
places, and the appointment of election inspectors and of other
election officials." And, to forests possible conflicts or frictions
between the Commission, on one hand, and the other offices or
agencies of the executive department, on the other, said section 2
postulates that "(a)ll law enforcement agencies and
instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring
free, orderly, and honest elections." Not satisfied with this, it
declares, in effect, that "(t)he decisions, orders, and ruling of the
Commission" shall not be subject to review, except by the
Supreme Court.
In accordance with the letter and spirit of said Art. X of the
Constitution, Rep. Act No. 6388, otherwise known as the Election
Code of 1971, implements the constitutional powers of the
Commission on Elections and grants additional powers thereto,
some of which are enumerated in sections 5 and 6 of said Act,
quoted below. 64Moreover, said Act contains, inter alia, detailed
provisions regulating contributions and other (corrupt) practices;
the establishment of election precincts; the designation and
arrangement of polling places, including voting booths, to protect
the secrecy of the ballot; formation of lists of voters, the
identification and registration of voters, the proceedings therefor,
as well as for the inclusion in, or exclusion or cancellation from
said list and the publication thereof; the establishment of
municipal, provincial and files of registered voters; the
composition and appointment of board of election inspectors; the
particulars of the official ballots to be used and the precautions to
be taken to insure authenticity thereof; the procedure for the
casting of votes; the counting of votes by boards of inspectors;
the rules for the appreciation of ballots and the preparation and
disposition of election returns; the constitution and operation of
municipal, provincials and national boards of canvassers; the
presentation of the political parties and/or their candidates in each
election precinct; the proclamation of the results, including, in the
case of election of public officers, election contests; and the

jurisdiction of courts of justice in cases of violation of the

provisions of said Election Code and the penalties for such
violations.
Few laws may be found with such meticulous and elaborate set of
provisions aimed at "insuring free, orderly, and honest election,"
as envisaged in section 2 of Art. X of the Constitution. Yet, none of
the foregoing constitutional and statutory provisions was followed
by the so-called Barangays or Citizens' Assemblies. And no
reasons have been given, or even sought to be given therefor. In
many, if not most, instances, the election were held a viva voce,
thus depriving the electorate of the right to vote secretly one of
the most, fundamental and critical features of our election laws
from time immemorial particularly at a time when the same
was of utmostimportance, owing to the existence of Martial Law.
In Glen v. Gnau, 65 involving the casting of many votes, openly,
without complying with the requirements of the law pertinent
thereto, it was held that the "election officers" involved "cannot
be too strongly condemned" therefor and that if they "could
legally dispense with such requirement ... they could with equal
propriety dispense with all of them, including the one that the
vote shall be by secret ballot, or even by ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of the
proposed Constitution drafted by the 1971 Constitutional
Convention, or on December 1, 1972, Presidential Decree No. 73
(on the validity of which which was contested in the plebiscite
cases, as well as in the 1972 habeas corpus cases 66 We need
not, in the case of bar, express any opinion) was issued, calling a
plebiscite, to be held on January 15, 1973, at which the proposed
Constitution would be submitted to the people for ratification or
rejection; directing the publication of said proposed Constitution;
and declaring, inter alia, that "(t)he provision of the Election Code
of 1971, insofar as they are not inconsistent" with said decree
excepting those "regarding right and obligations of political parties
and candidates" "shall apply to the conduct of the plebiscite."
Indeed, section 2 of said Election Code of 1971 provides that "(a)ll
elections of public officers except barrio officials and
plebiscites shall be conducted in the manner provided by this
Code." General Order No. 20, dated January 7, 1973, postponing
until further notice, "the plebiscite scheduled to be held on
January 15, 1973," said nothing about the procedure to be
followed in plebiscite to take place at such notice, and no other
order or decree has been brought to Our attention, expressly or
impliedly repealing the provisions of Presidential Decree 73,
insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly
suspended "the provisions of Section 3 of Presidential Decree No.
73 insofar as they allow free public discussion of proposed
Constitution ... temporarily suspending effects of Proclamation No.
1081 for the purposes of free open dabate on the proposed
Constitution ... ." This specific mention of the portions of the
decrees or orders or instructions suspended by General Order No.
20 necessarily implies that all other portions of said decrees,
orders or instructions and, hence, the provisions of Presidential
Decree No. 73 outlining the procedure to be followed in the
plebiscite for ratification or rejection of the proposed Constitution
remained in force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A the
text of which is quoted below 67 the Executive declared, inter
alia, that the collective views expressed in the Citizens'
Assemblies "shall be considered in the formulation of national
policies or programs and, wherever practicable, shall be translated
into concrete and specific decision"; that such Citizens'
Assemblies "shall consider vital national issues ... like the holding
of the plebiscite on the new Constitution ... and others in the
future, which shall serve as guide or basis for action or decision by
the national government"; and that the Citizens' Assemblies "shall
conduct between January 10 and 15, 1973, a referendum on
important national issues, including those specified in paragraph 2
hereof, and submit the results thereof to the Department of Local
Governments and Community Development immediately
thereafter, ... ." As in Presidential Decree No. 86, this Decree No.
86-A does not and cannot exclude the exercise of the
constitutional supervisory power of the Commission on Elections
or its participation in the proceedings in said Assemblies, if the
same had been intended to constitute the "election" or Plebiscite
required Art. V of the 1935 Constitution. The provision of Decree
No. 86-A directing the immediate submission of the result thereof
to the Department of Local Governments Community
Development is not necessarily inconsistent with, and must be
subordinate to the constitutional power of the Commission on
Elections to exercise its "exclusive authority over the enforcement
and administration of all laws to the conduct of elections," if the
proceedings in the Assemblies would partake of the nature of an
"election" or plebiscite for the ratification or rejection of the
proposed Constitution.
We are told that Presidential Decree No. 86 was further amended
by Presidential Decree No. 86-B, dated 1973, ordering "that
important national issues shall from time to time; be referred to
the Barangays (Citizens Assemblies) for resolution in accordance
with Presidential Decree No. 86-A dated January 5, 1973 and that
the initial referendum include the matter of ratification of the
Constitution by the 1971 Constitutional Convention" and that
"(t)he Secretary of the Department of Local Governments and
Community Development shall insure the implementation of this
order." As in the case of Presidential Decrees Nos. 86 and 86-A,

the foregoing directives do not necessarily exclude exercise of the

powers vested by the 1935 Constitution in the Commission on
Elections, even if the Executive had the authority to repeal Art. X
of our Fundamental Law which he does not possess. Copy of
Presidential Decree No. 86-B is appended hereto as Annex B
hereof.
The point is that, such of the Barrio Assemblies as were held took
place without the intervention of the Commission on Elections,
and without complying with the provisions of the Election Code of
1971 or even of those of Presidential Decree No. 73. What is more,
they were held under the supervision of the very officers and
agencies of the Executive Department sought to be
excluded therefrom by Art. X of the 1935 Constitution. Worse still,
said officers and agencies of the 1935 Constitution would be
favored thereby, owing to the practical indefinite extension of
their respective terms of office in consequence of section 9 of the
Transitory Provisions, found in Art. XVII of the proposed
Constitution, without any elections therefor. And the procedure
therein mostly followed is such that there is no reasonable means
of checking the accuracy of the returns files by the officers who
conducted said plebiscites. This is another patent violation of Art.
of the Constitution which can hardly be sanctioned. And, since the
provisions of this article form part of the fundamental scheme set
forth in the 1935 Constitution, as amended, to insure the "free,
orderly, and honest" expression of the people's will, the
aforementioned violation thereof renders null and void the
contested proceedings or alleged plebiscite in the Citizens'
Assemblies, insofar as the same are claimed to have ratified the
revised Constitution proposed by the 1971 Constitutional
Convention. "... (a)ll the authorities agree that the legal definition
of an election, as well as that which is usually and ordinarily
understood by the term, is a choosing or as election by those
having a right to participate (in the selection) of those who shall
fill the offices, or of the adoption or rejection of any public
measure affecting the territory involved. 15 Cyc. 279; Lewis v.
Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal.
145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A.
354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170;
Bouvier's Law Dictionary. 68
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation
No. 1102, the validity of which is precisely being contested by
petitioners herein. Respondents claim that said proclamation is
"conclusive" upon this Court, or is, at least, entitled to full faith
and credence, as an enrolled bill; that the proposed Constitution
has been, in fact, ratified, approved or adopted by the
"overwhelming" majority of the people; that Art. XV of the 1935
Constitution has thus been "substancially" complied with; and that
the Court refrain from passing upon the validity of Proclamation
No. 1102, not only because such question is political in nature,
but, also, because should the Court invalidate the proclamation,
the former would, in effect, veto the action of the people in whom
sovereignty resides and from its power are derived.
The major flaw in this process of rationalization is that it assumes,
as a fact, the very premise on which it is predicated, and which,
moreover, is contested by the petitioners. As the Supreme Court
of Minnessota has aptly put it
... every officer under a constitutional government must act
according to law and subject to its restrictions, and every
departure therefrom or disregard thereof must subject him to
the restraining and controlling of the people, acting through
the agency of the judiciary; for it must be remembered that
the people act through courts, as well as through the
executive or the Legislature. One department is just as
representative as the other, and the judiciary is the
department which is charged with the special duty of
determining the limitations which the law places upon all
official action. ... .
Accordingly, the issue boils downs to whether or not the Executive
acted within the limits of his authority when he certified in
Proclamation No. 1102 "that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional
Convention has been ratified by an overwhelming majority of all of
the votes cast by the members of all the Barangays (Citizens
Assemblies) throughout the Philippines and has thereby come into
effect."
In this connection, it is not claimed that the Chief Executive had
personal knowledge of the data he certified in said proclamation.
Moreover, Art. X of the 1935 Constitution was precisely inserted to
place beyond the Executive the power to supervise or even
exercise any authority whatsoever over "all laws relative to the
conduct of elections," and, hence, whether the elections are for
the choice or selection of public officers or for the ratification or
rejection of any proposed amendment, or revision of the
Fundamental Law, since the proceedings for the latter are, also,
referred to in said Art. XV as "elections".
The Solicitor General stated, in his argument before this Court,
that he had been informed that there was in each municipality a
municipal association of presidents of the citizens' assemblies for
each barrio of the municipality; that the president of each such
municipal association formed part of a provincial or city

association of presidents of such municipal associations; that the

president of each one of these provincial or city associations in
turn formed part of a National Association or Federation of
Presidents of such Provincial or City Associations; and that one
Francisco Cruz from Pasig, Rizal, as President of said National
Association or Federation, reported to the President of the
Philippines, in the morning of January 17, 1973, the total result of
the voting in the citizens' assemblies all over the country from
January 10 to January 15, 1973. The Solicitor General further
intimated that the said municipal associations had reported the
results of the citizens' assemblies in their respective municipalities
to the corresponding Provincial Association, which, in turn,
transmitted the results of the voting in the to the Department of
Local Governments and Community Development, which
tabulated the results of the voting in the citizens' assemblies
throughout the Philippines and then turned them over to Mr.
Franciso Cruz, as President or acting President of the National
Association or Federation, whereupon Mr. Cruz, acting in a
ceremonial capacity, reported said results (tabulated by the
Department of Governments and Community Development) to the
Chief Executive, who, accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a
member of any barrio council since 1972, so that he could
possibly have been a member on January 17, 1973, of
a municipal association of presidents of barrio or ward citizens'
assemblies, much less of a Provincial, City or National Association
or Federation of Presidents of any such provincial or city
associations.
Secondly, at the conclusion of the hearing of these cases February
16, 1973, and in the resolution of this Court of same date, the
Solicitor General was asked to submit, together with his notes on
his oral argument, a true copy of aforementioned report of Mr.
Cruz to the President and of "(p)roclamation, decree, instruction,
order, regulation or circular, if any, creating or directing or
authorizing creation, establishment or organization" of said
municipal, provincial and national associations, but neither a copy
of alleged report to the President, nor a copy of any
"(p)roclamation, decree, instruction, order, regulation or circular,"
has been submitted to this Court. In the absence of said report,
"(p)roclamation, decree, instruction," etc., Proclamation No. 1102
is devoid of any factual and legalfoundation. Hence, the
conclusion set forth in the dispositive portion of said Proclamation
No. 1102, to the effect that the proposed new or revised
Constitution had been ratified by majority of the votes cast by the
people, can not possibly have any legal effect or value.
The theory that said proclamation is "conclusive upon Court is
clearly untenable. If it were, acts of the Executive and those of
Congress could not possibly be annulled or invalidated by courts
of justice. Yet, such is not the case. In fact, even a resolution of
Congress declaring that a given person has been elected President
or Vice-President of the Philippines as provided in the
Constitution, 69 is not conclusive upon the courts. It is no
more than prima 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 assailed in 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.
The case of In re McConaughy 72 is squarely in point. "As the
Constitution stood from the organization of the state" of
Minnessota "all taxes were required to be raised under the
system known as the 'general property tax.' Dissatisfaction with
the results of this method and the development of more scientific
and satisfactory methods of raising revenue induced the
Legislature to submit to the people an amendment to the
Constitution which provided merely that taxes shall be uniform
upon the same class of subjects. This proposed amendment was
submitted at the general election held in November, 1906, and in
due time it was certified by the state canvassing board and
proclaimed by the Governor as having been legally adopted.
Acting upon the assumption that the amendment had become a
part of the Constitution, the Legislature enacted statutes providing
for a State Tax Commission and a mortgage registry tax, and the
latter statute, upon the same theory, was held constitutional" by
said Court. "The district court found that the amendment had no
in fact been adopted, and on this appeal" the Supreme Court was
"required to determine the correctness of that conclusion."
Referring to the effect of the certification of the State Board of
Canvassers created by the Legislature and of
theproclamation made by the Governor based thereon, the Court
held: "It will be noted that this board does no more than tabulate
the reports received from the various county board and add up
and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126,
9 L.R.A. (U.S.) 1221. It is settled law that the decisions of election

officers, and canvassing boards are not conclusive and that the
final decision must rest with the courts, unless the law declares
that the decisions of the board shall be final" and there is no
such law in the cases at bar. "... The correctness of the conclusion
of the state board rests upon the correctness of the returns made
by the county boards and it is inconceivable that it was intended
that this statement of result should be final and conclusive
regardless of the actual facts. The proclamation of the Governor
adds nothing in the way of conclusiveness to the legal effect of
the action of the canvassing board. Its purpose is to formally
notify the people of the state of the result of the voting as found
by the canvassing board. James on Const. Conv. (4th Ed.) sec.
523."
In Bott v. Wartz, 73 the Court reviewed the statement of results of
the election made by the canvassing board, in order that the true
results could be judicially determined. And so did the court in Rice
v. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the
"exclusive" charge of the Commission on Elections, "the
enforcement and administration of all laws relative to the conduct
of elections," independently of the Executive, and there is not
even a certification by the Commission in support of the alleged
results of the citizens' assemblies relied upon in Proclamation No.
1102 apart from the fact that on January 17, 1973 neither the
alleged president of the Federation of Provincial or City Barangays
nor the Department of Local Governments had certified to the
President the alleged result of the citizens' assemblies all over the
Philippines it follows necessarily that, from a constitutional and
legal viewpoint, Proclamation No. 1102 is not even prima
facie evidence of the alleged ratification of the proposed
Constitution.
Referring particularly to the cases before Us, it will be noted that,
as pointed out in the discussion of the preceding topic, the new or
revised Constitution proposed by the 1971 Constitutional
Convention was not ratified in accordance with the provisions of
the 1935 Constitution. In fact, it has not even been, ratified in
accordance with said proposed Constitution, the minimum age
requirement therein for the exercise of the right of suffrage
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
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L36165, 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 far established the truth of such
defense.
Even more important, and decisive, than the foregoing is the
circumstance that there is ample reason to believe that many, if
not most, of the people did not know that the Citizens' Assemblies
were, at the time they were held, plebiscites for the ratification or
rejection of the proposed Constitution. Hence, in Our decision in
the plebiscite cases, We said, inter alia:
Meanwhile, or on December 17, 1972, the President had
issued an order temporarily suspending the effects of
Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution. On December 23, the
President announced the postponement of the plebiscite for
the ratification or rejection of the Proposed Constitution. No
formal action to this effect was taken until January 7, 1973,
when General Order No. 20 was issued, directing "that the
plebiscite scheduled to be held on January 15, 1973, be
postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of
December 17, 1972, temporarily suspending the effects of
Proclamation No. 1081 for purposes of free and open debate
on the proposed Constitution.
In view of these events relative to the postponement of the
aforementioned plebiscite, the Court deemed it fit to refrain,
for the time being, from deciding the aforementioned cases,
for neither the date nor the conditions under which said
plebiscite would be held were known or announced officially.
Then again, Congress was, pursuant to the 1935 Constitution,
scheduled to meet in regular session on January 22, 1973,
and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority

to call a plebiscite and appropriate funds therefor, which

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

urgently suspended all scheduled Citizens Assembly

meetings on that day and called all Mayors, Chiefs of Offices
and other government officials to another conference to
discuss with them the new set of guidelines and materials to
be used.
On January 11, ... another instruction from the top was
received to include the original five questions among those to
be discussed and asked in the Citizens' Assembly meetings.
With this latest order,we again had to make modifications in
our instructions to all those managing and supervising the
holding of the Citizens' Assembly meetings throughout the
province. ... Aside from the coordinators we had from the
Office of the Governor, the splendid cooperation and support
extended by almost all government officials and
employees in the province, particularly of the Department of
Education, PC and PACD personnel, provided us with enough
hands to trouble shoot and implement sudden changes in the
instructions anytime and anywhere needed. ...
... As to our people, in general, their enthusiastic participation
showed their preference and readiness to accept this new
method of government to people consultation in shaping up
government policies.
Thus, as late as January 10, 1973, the Bataan officials had
to suspend "all scheduled Citizens' Assembly meetings ..." and call
all available officials "... to discuss with them the new set of
guidelines and materials to be used ... ." Then, "on January 11 ...
another instruction from the top was received to include the
original five questions among those be discussed and asked in the
Citizens' Assembly meetings. With this latest order, we again had
to make modifications in our instructions to all those managing
and supervising holding of the Citizens' Assembly meetings
throughout province. ... As to our people, in general, their
enthusiastic participation showed their preference and readiness
to accept the new method of government to people consultation
in shaping upgovernment policies."
This communication manifestly shows: 1) that, as late a January
11, 1973, the Bataan officials had still to discuss not put into
operation means and ways to carry out the changing
instructions from the top on how to organize the citizens'
assemblies, what to do therein and even what questions or topics
to propound or touch in said assemblies; 2) that the assemblies
would involve no more than consultations or dialogues between
people and government not decisions be made by the people;
and 3) that said consultations were aimed only at "shaping
up government policies" and, hence could not, and did not,
partake of the nature of a plebiscite for the ratification or rejection
of a proposed amendment of a new or revised Constitution for the
latter does not entail the formulation of a policy of the
Government, but the making of decision by the people on the new
way of life, as a nation, they wish to have, once the proposed
Constitution shall have been ratified.
If this was the situation in Bataan one of the provinces nearest
to Manila as late as January 11, 1973, one can easily imagine
the predicament of the local officials and people in the remote
barrios in northern and southern Luzon, in the Bicol region, in the
Visayan Islands and Mindanao. In fact, several members of the
Court, including those of their immediate families and their
household, although duly registered voters in the area of Greater
Manila, were not even notified that citizens' assemblies would be
held in the places where their respective residences were located.
In the Prohibition and Amendment case, 77 attention was called to
the "duty cast upon the court of taking judicial cognizance of
anything affecting the existence and validity of any law or portion
of the
Constitution ... ." In line with its own pronouncement in another
case, the Federal Supreme Court of the United States stressed,
in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to
an obvious mistake, when the validity of the law depends upon
the truth of what is declared."
In the light of the foregoing, I cannot see how the question under
consideration can be answered or resolved otherwise than in the
negative.
V
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now
and has been run, since January 17, 1971, under the Constitution
drafted by the 1971 Constitutional Convention; that the political
department of the Government has recognized said revised
Constitution; that our foreign relations are being conducted under
such new or revised Constitution; that the Legislative Department
has recognized the same; and that the people, in general, have,
by their acts or omissions, indicated their conformity thereto.
As regards the so-called political organs of the Government,
gather that respondents refer mainly to the offices under the
Executive Department. In a sense, the latter performs some
functions which, from a constitutional viewpoint, are politics in
nature, such as in recognizing a new state or government, in
accepting diplomatic representatives accredited to our
Government, and even in devising administrative means and ways
to better carry into effect. Acts of Congress which define the goals
or objectives thereof, but are either imprecise or silent on the
particular measures to be resorted to in order to achieve the said
goals or delegate the power to do so, expressly or impliedly, to
the Executive. This, notwithstanding, the political organ of a

government that purports to be republican is essentially the

Congress or Legislative Department. Whatever may be the
functions allocated to the Executive Department specially under
a written, rigid Constitution with a republican system of
Government like ours the role of that Department is inherently,
basically and fundamentally executive in nature to "take care
that the laws be faithfully executed," in the language of our 1935
Constitution. 79
Consequently, I am not prepared to concede that the acts the
officers and offices of the Executive Department, in line with
Proclamation No. 1102, connote a recognition thereof o an
acquiescence thereto. Whether they recognized the proposed
Constitution or acquiesce thereto or not is something that cannot
legally, much less necessarily or even normally, be deduced from
their acts in accordance therewith, because the are bound to obey
and act in conformity with the orders of the President, under
whose "control" they are, pursuant to the 1935 Constitution. They
have absolutely no other choice, specially in view of Proclamation
No. 1081 placing the Philippines under Martial Law. Besides, by
virtue of the very decrees, orders and instructions issued by the
President thereafter, he had assumed all powers of Government
although some question his authority to do so and,
consequently, there is hardly anything he has done since the
issuance of Proclamation No. 1102, on January 17, 1973
declaring that the Constitution proposed by the 1971
Constitutional Convention has been ratified by the overwhelming
majority of the people that he could not do under the authority
he claimed to have under Martial Law, since September 21, 1972,
except the power of supervision over inferior courts and its
personnel, which said proposed Constitution would place under
the Supreme Court, and which the President has not ostensibly
exercised, except as to some minor routine matters, which the
Department of Justice has continued to handle, this Court having
preferred to maintain the status quo in connection therewith
pending final determination of these cases, in which the effectivity
of the aforementioned Constitution is disputed.
Then, again, a given department of the Government cannot
generally be said to have "recognized" its own acts. Recognition
normally connotes the acknowledgment by a party of the acts
of another. Accordingly, when a subordinate officer or office of the
Government complies with the commands of a superior officer or
office, under whose supervision and control he or it is, the former
merely obeys the latter. Strictly speaking, and from a legal and
constitutional viewpoint, there is no act of recognition involved
therein. Indeed, the lower officer or office, if he or it acted
otherwise, would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth 80 cited
by respondents herein in support of the theory of the people's
acquiescence involved a constitution ordained in 1902 and
"proclaimed by a convention duly called by a direct vote of the
people of the state to revise and amend the Constitution of 1869.
The result of the work of that Convention has been recognized,
accepted and acted upon as the only valid Constitution of the
State" by
1. The "Governor of the State in swearing fidelity to it and
proclaiming it, as directed thereby";
2. The "Legislature in its formal official act adopting a joint
resolution, July 15, 1902, recognizing the Constitution ordained by
the Convention ...";
3. The "individual oaths of its members to support it, and by its
having been engaged for nearly a year, in legislating under it and
putting its provisions into
operation ...";
4. The "judiciary in taking the oath prescribed thereby to support
it and by enforcing its provisions ..."; and
5. The "people in their primary capacity by peacefully accepting it
and acquiescing in it, by registering as voters under it to the
extent of thousands throughout the State, and by voting, under its
provisions, at a general election for their representatives in the
Congress of the United States."
Note that the New Constitution of Virginia, drafted by a convention
whose members were elected directly by the people,
was not submitted to the people for ratification or rejection
thereof. But, it was recognized, not by the convention itself, but
by other sectors of the Government, namely, the Governor; the
Legislature not merely by individual acts of its members, but
by formal joint resolution of its two (2) chambers; by the judiciary;
and by the people, in the various ways specified above. What is
more, there was no martial law. In the present cases, noneof 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 L36142 was filed, or three (3) days after the issuance of
Proclamation No. 1102.
It is further alleged that a majority of the members of our House
of Representatives and Senate have acquiesced in the new or
revised Constitution, by filing written statements opting to serve
in the Ad Interim Assembly established in the Transitory Provisions
of said Constitution. Individual acts of recognition by members of
our legislature, as well as of other collegiate bodies under the
government, are invalid as acts of said legislature or bodies,
unless its members have performed said acts in session duly
assembled, or unless the law provides otherwise, and there is no
such law in the Philippines. This is a well-established principle of
Administrative Law and of the Law of Public Officers, and no
plausible reason has been adduced to warrant departure
therefrom. 81
Indeed, if the members of Congress were generally agreeable to
the proposed Constitution, why did it become necessary to
padlock its premises to prevent its meeting in session on January
22, 1973, and thereafter as provided in the 1935 Constitution? It is
true that, theoretically, the members of Congress, if bent on
discharging their functions under said Constitution, could have
met in any other place, the building in which they perform their
duties being immaterial to the legality of their official acts. The
force of this argument is, however, offset or dissipated by the fact
that, on or about December 27, 1972, immediately after a
conference between the Executive, on the one hand, and
members of Congress, on the other, some of whom expressed the
wish to meet in session on January 22, 1973, as provided in the
1935 Constitution, a Daily Express columnist (Primitivo Mijares)
attributed to Presidential Assistant Guillermo de Vega a statement
to the effect that "'certain members of the Senate appear to be
missing the point in issue' when they reportedly insisted on taking
up first the question of convening Congress." The Daily Express of
that date, 82 likewise, headlined, on its front page, a
"Senatorial PlotAgainst 'Martial Law Government' Disclosed".
Then, in its issue of December 29, 1972, the same paper imputed
to the Executive an appeal "to diverse groups involved in
a conspiracy to undermine" his powers" under martial law
to desist from provoking a constitutional crisis ... which may result
in the exercise by me of authority I have not exercised."
No matter how good the intention behind these statement may
have been, the idea implied therein was too clear an ominous for
any member of Congress who thought of organizing, holding or
taking part in a session of Congress, not to get the impression that
he could hardly do so without inviting or risking the application of
Martial Law to him. Under these conditions, I do not feel justified
in holding that the failure of the members of Congress to meet
since January 22, 1973, was due to their recognition,
acquiescence in or conformity with the provisions of the
aforementioned Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No.
1081, placing the entire Philippines under Martial Law, neither am
I prepared to declare that the people's inaction as regards
Proclamation No. 1102, and their compliance with a number of
Presidential orders, decrees and/or instructions some or many
of which have admittedly had salutary effects issued
subsequently thereto amounts, constitutes or attests to a
ratification, adoption or approval of said Proclamation No. 1102. In
the words of the Chief Executive, "martial law 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.
As regards the applicability to these cases of the "enrolled bill"
rule, it is well to remember that the same refers to a document
certified to the President for his action under the Constitution
by the Senate President and the Speaker of the House of
Representatives, and attested to by the Secretary of the Senate
and the Secretary of the House of Representatives, concerning
legislative measures approved by the two Houses of Congress.
The argument of the Solicitor General is, roughly, this: If the
enrolled bill is entitled to full faith and credence and, to this
extent, it is conclusive upon the President and the judicial branch
of the Government, why should Proclamation No. 1102 merit less
consideration than in enrolled bill?
Before answering this question, I would like to ask the following: If,
instead of being certified by the aforementioned officers of
Congress, the so-called enrolled bill were certified by, say, the
President of the Association of Sugar Planters and/or Millers of the
Philippines, and the measure in question were a proposed
legislation concerning Sugar Plantations and Mills sponsored by

said Association, which even prepared the draft of said legislation,

as well as lobbied actually for its approval, for which reason the
officers of the Association, particularly, its aforementioned
president whose honesty and integrity are unquestionable
were present at the deliberations in Congress when the same
approved the proposed legislation, would the enrolled bill rule
apply thereto? Surely, the answer would have to be in the
negative. Why? Simply, because said Association President has
absolutely no official authority to perform in connection therewith,
and, hence, his certification is legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department
of Local Governments and Community Development about the
tabulated results of the voting in the Citizens Assemblies
allegedly held all over the Philippines and the records do not
show that any such certification, to the President of the Philippines
or to the President Federation or National Association of
presidents of Provincial Associations of presidents of municipal
association presidents of barrio or ward assemblies of citizens
would not, legally and constitutionally, be worth the paper on
which it is written. Why? Because said Department Secretary is
not the officer designated by law to superintend plebiscites or
elections held for the ratification or rejection of a proposed
amendment or revision of the Constitution and, hence, to tabulate
the results thereof. Worse still, it is the department which,
according to Article X of the Constitution, should not and
must not be all participate in said plebiscite if plebiscite there
was.
After citing approvingly its ruling in United States v.
Sandoval, 84 the Highest Court of the United States that courts
"will not stand impotent before an obvious instance of
a manifestly unauthorized exercise of power." 85
I cannot honestly say, therefore, that the people impliedly or
expressly indicated their conformity to the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said
about the procedure followed in these five (5) cases. In this
connection, it should be noted that the Court has not decided
whether or not to give due course to the petitions herein or to
require the respondents to answer thereto. Instead, it has required
the respondents to comment on the respective petitions with
three (3) members of the voting to dismiss them outright and
then considers comments thus submitted by the respondents as
motions to dismiss, as well as set the same for hearing. This was
due to the transcendental nature of the main issue raised, the
necessity of deciding the same with utmost dispatch, and the
main defense set up by respondents herein, namely, the alleged
political nature of said issue, placing the same, according to
respondents, beyond the ambit of judicial inquiry and
determination. If this defense was sustained, the cases could
readily be dismissed; but, owing to the importance of the
questions involved, a reasoned resolution was demanded by
public interest. At the same time, respondents had cautioned
against a judicial inquiry into the merits of the issues posed on
account of the magnitude of the evil consequences, it was
claimed, which would result from a decision thereon, if adverse to
the Government.
As a matter of fact, some of those issues had been raised in the
plebiscite cases, which were dismissed as moot and academic,
owing to the issuance of Proclamation No. 1102 subsequently to
the filing of said cases, although before the rendition of judgment
therein. Still one of the members of the Court (Justice Zaldivar)
was of the opinion that the aforementioned issues should be
settled in said cases, and he, accordingly, filed an opinion passing
upon the merits thereof. On the other hand, three (3) members of
the Court Justices Barredo, Antonio and Esguerra filed
separate opinions favorable to the respondents in the plebiscite
cases, Justice Barredo holding "that the 1935 Constitution has pro
tanto passed into history and has been legitimately supplanted by
the Constitution in force by virtue of Proclamation 1102." 86 When
the petitions at bar were filed, the same three (3) members of the
Court, consequently, voted for the dismissal of said petitions. The
majority of the members of the Court did not share, however,
either view, believing that the main question that arose before the
rendition of said judgment had not been sufficiently discussed and
argued as the nature and importance thereof demanded.
The parties in the cases at bar were accordingly given every
possible opportunity to do so and to elucidate on and discuss said
question. Thus, apart from hearing the parties in oral argument for
five (5) consecutive days morning and afternoon, or a total of
exactly 26 hours and 31 minutes the respective counsel filed
extensive notes on their or arguments, as well as on such
additional arguments as they wished to submit, and reply notes or
memoranda, in addition to rejoinders thereto, aside from a
sizeable number of document in support of their respective
contentions, or as required by the Court. The arguments, oral and
written, submitted have been so extensive and exhaustive, and
the documents filed in support thereof so numerous and bulky,
that, for all intents and purposes, the situation is as if
disregarding forms the petitions had been given due course and
the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that
they should express their views on the aforementioned issues as if
the same were being decided on the merits, and they have done
so in their individual opinion attached hereto. Hence, the resume

of the votes cast and the tenor of the resolution, in the last pages
hereof, despite the fact that technically the Court has not, as yet,
formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ
of mandamus prayed for against Gil J. Puyat and Jose Roy,
President and President Pro Tempore respectively of the Senate, it
being settled in our jurisdiction, based upon the theory of
separation of powers, that the judiciary will not issue such writ to
the head of a co-equal department, like the aforementioned
officers of the Senate.
In all other respects and with regard to the other respondent in
said case, as well as in cases L-36142, L-36164, L-36236 and L36283, my vote is that the petitions therein should be given due
course, there being more thanprima facie showing that the
proposed Constitution has not been ratified in accordance with
Article XV of the 1935 Constitution, either strictly, substantially, or
has been acquiesced in by the people or majority thereof; that
said proposed Constitution is not in force and effect; and that the
1935 Constitution is still the Fundamental Law of the Land,
without prejudice to the submission of said proposed Constitution
to the people at a plebiscite for its ratification or rejection in
accordance with Articles V, X and XV of the 1935 Constitution and
the provisions of the Revised Election Code in force at the time of
such plebiscite.
Perhaps others would feel that my position in these cases
overlooks what they might consider to be the demands of "judicial
statesmanship," whatever may be the meaning of such phrase. I
am aware of this possibility, if not probability; but "judicial
statesmanship," though consistent with Rule of Law, cannot
prevail over the latter. Among consistent ends or consistent
values, there always is a hierarchy, a rule of priority.
We must realize that the New Society has many achievements
which would have been very difficult, if not impossible, to
accomplish under the old dispensation. But, in and for the
judiciary, statesmanship should not prevail over the Rule of Law.
Indeed, the primacy of the law or of the Rule of Law and faithful
adherence thereto are basic, fundamental and essential parts of
statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court
of their individual opinions and/or concurrences as appended
hereto, the writer will now make, with the concurrence of his
colleagues, a resume or summary of the votes cast by each of
them.
It should be stated that by virtue of the various approaches and
views expressed during the deliberations, it was agreed to
synthesize the basic issues at bar in broad general terms in five
questions for purposes of taking the votes. It was further agreed
of course that each member of the Court would expound in his
individual opinion and/or concurrence his own approach to the
stated issues and deal with them and state (or not) his opinion
thereon singly or jointly and with such priority, qualifications and
modifications as he may deem proper, as well as discuss thereon
other related issues which he may consider vital and relevant to
the cases at bar.
The five questions thus agreed upon as reflecting the basic issues
herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a
justiciable, or political and therefore non-justiciable, question?
2. Has the Constitution proposed by the 1971 Constitutional
Convention been ratified validly (with substantial, if not strict,
compliance) conformably to the applicable constitutional and
statutory provisions?
3. Has the aforementioned proposed Constitution acquiesced in
(with or without valid ratification) by the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views
expressed by the members of the Court in their respect opinions
and/or concurrences, are as follows:
1. On the first issue involving the political-question doctrine
Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and
myself, or six (6) members of the Court, hold that the issue of the
validity of Proclamation No. 1102 presents a justiciable and nonpolitical question. Justices Makalintal and Castro did not vote
squarely on this question, but, only inferentially, in their
discussion of the second question. Justice Barredo qualified his
vote, stating that "inasmuch as it is claimed there has been
approval by the people, the Court may inquire into the question of
whether or not there has actually been such an approval, and, in
the affirmative, the Court should keep hands-off out of respect to
the people's will, but, in negative, the Court may determine from
both factual and legal angles whether or not Article XV of the
1935 Constitution been complied with." Justices Makasiar, Antonio,
Esguerra, or three (3) members of the Court hold that the issue is
political and "beyond the ambit of judicial inquiry."
2. On the second question of validity of the ratification, Justices
Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or
six (6) members of the Court also hold that the Constitution
proposed by the 1971 Constitutional Convention was not validly

ratified in accordance with Article XV, section 1 of the 1935

Constitution, which provides only one way for ratification, i.e., "in
an election or plebiscite held in accordance with law and
participated in only by qualified and duly registered voters. 87
Justice Barredo qualified his vote, stating that "(A)s to whether or
not the 1973 Constitution has been validly ratified pursuant to
Article XV, I still maintain that in the light of traditional concepts
regarding the meaning and intent of said Article, the referendum
in the Citizens' Assemblies, specially in the manner the votes
therein were cast, reported and canvassed, falls short of the
requirements thereof. In view, however, of the fact that I have no
means of refusing to recognize as a judge that factually there was
voting and that the majority of the votes were for considering as
approved the 1973 Constitution without the necessity of the usual
form of plebiscite followed in past ratifications, I am constrained to
hold that, in the political sense, if not in the orthodox legal sense,
the people may be deemed to have cast their favorable votes in
the belief that in doing so they did the part required of them by
Article XV, hence, it may be said that in its political aspect, which
is what counts most, after all, said Article has been substantially
complied with, and, in effect, the 1973 Constitution has been
constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of
the Court hold that under their view there has been in effect
substantial compliance with the constitutional requirements for
valid ratification.
3. On the third question of acquiescence by the Filipino people in
the aforementioned proposed Constitution, no majority vote has
been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar,
Antonio and Esguerra hold that "the people have already accepted
the 1973 Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself
hold that there can be no free expression, and there has even
been no expression, by the people qualified to vote all over the
Philippines, of their acceptance or repudiation of the proposed
Constitution under Martial Law. Justice Fernando states that "(I)f it
is conceded that the doctrine stated in some American decisions
to the effect that independently of the validity of the ratification, a
new Constitution once accepted acquiesced in by the people must
be accorded recognition by the Court, I am not at this stage
prepared to state that such doctrine calls for application in view of
the shortness of time that has elapsed and the difficulty of
ascertaining what is the mind of the people in the absence of the
freedom of debate that is a concomitant feature of martial law." 88
Three (3) members of the Court express their lack of knowledge
and/or competence to rule on the question. Justices Makalintal and
Castro are joined by Justice Teehankee in their statement that
"Under a regime of martial law, with the free expression of
opinions through the usual media vehicle restricted, (they) have
no means of knowing, to the point of judicial certainty, whether
the people have accepted the Constitution." 89
4. On the fourth question of relief, six (6) members of the Court,
namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio
and Esguerra voted to DISMISS the petition. Justice Makalintal and
Castro so voted on the strength of their view that "(T)he effectivity
of the said Constitution, in the final analysis, is the basic and
ultimate question posed by these cases to resolve which
considerations other than judicial, an therefore beyond the
competence of this Court, 90 are relevant and unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar,
Fernando, Teehankee and myself voted to deny respondents'
motion to dismiss and to give due course to the petitions.
5. On the fifth question of whether the new Constitution of 1973 is
in force:
Four (4) members of the Court, namely, Justices Barredo,
Makasiar, Antonio and Esguerra hold that it is in force by
virtue of the people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal,
Castro, Fernando and Teehankee cast no vote thereon on the
premise stated in their votes on the third question that they
could not state with judicial certainty whether the people
have accepted or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and
myself voted that the Constitution proposed by the 1971
Constitutional Convention is not in force;
with the result that there are not enough votes to declare that the
new Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with
the four (4) dissenting votes of the Chief Justice and Justices
Zaldivar, Fernando and Teehankee, all the aforementioned cases
are hereby dismissed. This being the vote of the majority, there is
no further judicial obstacle to the new Constitution being
considered in force and effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ.,
concur.
ANNEX A
PERTINENT PORTIONS

OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have
almost uniformly exercised the authority to determine the validity
of the proposal, submission, or ratification of constitutional
amendments. It has beenjudicially determined whether a
proposed amendment received the constitutional majority of
votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark.
432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881,
45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6
L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71
N.W. 779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am.
St. Rep. 169; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A.
722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a proposed
amendment is a single amendment, within the constitutional
requirement that every amendment must be separately submitted
(State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago,
etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis. 318,
11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A.
722; Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v.
Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v.
Board, 34 Mont. 426, 87 Pac. 450; State v. Winnett [Neb.] 110
N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the
resolution of submission upon the legislative journals invalidates
the amendment (Koehler v. Hill, 60 Iowa, 543,14 N.W. 738,15 N.W.
609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v.
State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354,
56 Pac. 56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep.
895); whether the description of the amendment and the form of
the ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849;
State v. Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149; Murphy
Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether the
method of submission sufficient (Lovett v. Ferguson,, 10 S.D. 44,
71 N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether
the publication of the amendment or of a notice relative to it is
sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568;
Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the submission
may be well by resolution as by a legislative act approved by the
executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568;
Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward Lesueur, 132
Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154,
47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at
what election the amendment be submitted (People v. Curry, 130
Cal. 82, 62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the
court said: "It is contended that the determination of the question
whether an amendment to the Constitution has been carried
involves the exercise of political, and not judicial, power. If this be
so, it follows that the promulgation of any purported amendment
by the executive or any executive department is final, and that
the action cannot be questioned by the judiciary; but, with
reference to the conditions precedent to submitting a proposed
amendment to a vote of the people, it has been repeatedly held,
by courts of the highest respectability, that it is within the power
of the judiciary to inquire into the question, even in a collateral
proceeding. ... It is to be noted that under section 1 of article 20 of
the Constitution of the state no amendment can become a part of
the Constitution until ratified by a vote of the people. One
prerequisite is equally as essential as the other. The amendment
must first receive the requisite majority in the Legislature, and
afterwards be adopted by the requisite vote. ... It is the fact of a
majority vote which makes the amendment a part of the
Constitution."
"In considering the cases it is necessary to note whether in the
particular case the court was called upon to determine
between rival governments, or whether the Legislature, or some
board or official, had legally performed the duty imposed by the
Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am.
Dec. 636, it was held that the General Assembly, under the power
granted by the Constitution, could change the Constitutiononly 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 people in convention or in
a mode described by the Constitution itself, and that if the latter
mode is adoptedevery requisite of the Constitution must be
observed. 'It has been said," says the court, "that certain acts are
to be done, certain requisitions are to be observed, before a
change can be effected; but to what purpose are these acts
required, or these requisitions enjoined, if the Legislature or any
other department of the government candispense with them. To
do so would be to violate the instrument which they are sworn to
support; and every principle of public law and sound constitutional
policy requires the court to pronounce against every amendment
which is shown not to have been made in accordance with the
rules prescribed by the fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a
state may form an original Constitution, or abrogate an old one
and form a new one, at any time, without any political
restriction, except the Constitution of the United States, but if
they undertake to add an amendment, by the authority of
legislation to a Constitution already in existence, they can do it

only by the method pointed out by the Constitution to which the

amendment is added. The power to amend a Constitution by
legislative action does not confer the power to break it, any more
than it confers the power to legislate on any other subject
contrary to its prohibitions.' So, in State v. Timme, 54 Wis. 318, 11
N.W. 785, it was held that no amendments can be made to the
Constitution of the state without a compliance with the provisions
thereof, both in the passage of such amendment by the
Legislature and the manner of submitting it to the people. The
courts have not all agreed as to the strictness of compliance
which should be required.
"In the Prohibition and Amendment Case, 24 Kan. 700, the
court determined judicially whether an amendment to the
Constitution had been legally adopted. After approving the
statement quoted from Collier v. Frierson, supra, that 'we
entertain no doubt that, to change the Constitution in an other
mode than by a convention, every requisite which is demanded by
the instrument itself must be observed, and the omission of any
one is fatal to the amendment,' the court held that, 'as substance
of right is grander and more potent than methods of form,' there
had been substantial compliance with the constitutional
requirement that a proposed amendment to the Constitution must
be entered at length on the legislative journal. It appears that the
joint resolution making submission simply provided that a
proposition should be submitted to the electors at the general
election of 1880. It did not declare that the machinery of the
general election law should control, or that any particular officers
or board would receive, count, or canvass the votes cast. But the
existing election machinery was adequate, and the votes were
received, counted, and canvassed, and the result declared as fully
as though it had been in terms so ordered. These methods had
been followed in the adoption of previous amendments, and was
held that, conceding the irregularity of the proceedings the
Legislature and the doubtful scope of the provisions for the
election, yet in view of the very uncertainty of such provision
the past legislative history of similar propositions, theuniversal
prior acquiescence in the same forms of procedure and the
popular and unchallenged acceptance of the legal pendency
before the people of the question of the amendment for decision,
and in view of the duty cast upon the court taking judicial
knowledge of anything affecting the existence and validity of any
law or portion of the Constitution, it must be adjudged that the
proposed amendment became part of the Constitution. The effect
was to hold that a provision of the Constitution requiring the
proposed amendment to be entered in full on the journals
was directory, and not mandatory. This liberal view was approved
in State v. Winnett (Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and
People v. Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it
has not been universally accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court,
in commenting upon the Kansas case said: 'The reasoning by
which the learned court reached the conclusion it did is not based
on any sound legal principles, but contrary to them. Neither the
argument nor the conclusion can command our assent or
approval. The argument is illogical, and based on premises which
are without any sound foundation, and rests merely on
assumption.' See, also, the well-considered case of Kadderly v.
Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222.All these
cases concede the jurisdiction of the court to determine whether,
in submitting a proposed amendment to the people, the
Legislature legally observed the constitutional provisions as to the
manner of procedure. InLivermore v. Waite, 102 Cal. 113, 36 Pac.
424, 25 L.R.A. 312, the court, at the instance of a citizen and a
taxpayer, restrained the Secretary of State from taking steps to
submit to the people a proposed amendment to the Constitution
agreed to by the Legislature on the ground that the Legislature
had not acted in conformity with the Constitution and that the
proposed amendment was of such a character that it could not
properly become a part of the Constitution. The Supreme Court of
Colorado, in People v. Sours, supra, refused to exercise this
authority.
"The entire question received elaborate consideration in Koehler v.
Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment,
which concededly had been adopted by the people, had not,
before its submission, been entered in full upon the legislative
journals, as required by the Constitution, and it was held that this
was amaterial variance in both form and substance from the
constitutional requirements, and that the amendment didnot,
therefore, become a part of the Constitution. As to the claim that
the question was political, and not judicial, it was said that, while
it is not competent for courts to inquire into the validity of the
Constitution and the form of government under which they
themselves exist, and from which they derive their powers,
yet, where the existing Constitution prescribes a method for its
own amendment, an amendment thereto, to be valid, must be
adopted in strict conformity to that method; and it is the duty of
the courts in a proper case, when an amendment does not relate
to their own power or functions, to inquire whether, in the
adoption of the amendment, the provisions of the existing
Constitution have been observed, and, if not, to declare the
amendment invalid and of no force. This case was followed
in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. 76, the question whether a
proposed amendment to the Constitution had been legally
adopted was treated as a judicial question. By the Constitution a
proposed amendment was required to be approved by
Legislatures before its submission to the people. In this instance a

bill was passed which contained 17 amendments. The next

Legislature rejected 9 and adopted 8 of the amendments, and
submitted them to the people. The majority of the people voted
for their adoption; but it was contended that the Constitution
contemplated and required that the same bill and the same
amendments, without change, should approved by both
Legislatures, and that it did not follow because the second
Legislature adopted separately 8 out of 17amendments adopted
by the first Legislature, it would have adopted the 17, or any of
them, if they had been voted upon the second in the form adopted
by the first body. The substance of the contention was that there
had not been a concurrence of the two Legislatures on the same
amendments, according to the letter and spirit of the Constitution.
The court held that the power of the Legislature in submitting
amendments could not be distinguished from the powers of
convention, and that, as the people had spoken and ratified the
amendments, they became a part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held
that prior to 1876 a proposed amendment to Constitution could
not be submitted to the people at any other than a general
election; but, as the amendment under consideration had been
submitted after the Constitution been changed, it had been legally
submitted and adopted.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question
whether an amendment to the Constitution had been legally
submitted and adopted by the people was held to be judicial,
and not political, in its nature. The amendment under
consideration changed the Constitution by providing for an
elective, instead of an appointive, judiciary. It was contented that
the amendments had been improperly submitted and adopted by
a majority of the qualified voters voting at election, as required by
the Constitution. The law did direct how the result of the election
should be determined. The Legislature by joint resolution recited
that the election had been duly held throughout the state, and, as
it appeared from the returns made to the Secretary of State, that
21,169 votes were cast in favor of, and 8,643 votes against, the
amendment, it resolved 'that said amendment be, and hereby
is, insertedinto the Constitution of the state of Mississippi as a part
of the Constitution.' In fact, the amendment was notsubmitted in
the manner prescribed by the Constitution, and it did not receive
a majority of all the qualified voters voting at the election. It was
argued that the rules prescribed by the Constitution "are all for
the guidance of the Legislature, and from the very nature of the
thing the Legislature must be the exclusive judge of all questions
to be measured or determined by these rules. Whether the
question be political, and certainly a legislative one, or judicial, to
be determined by the courts, this section of rules, not only of
procedure, but of final judgment as well, confides to the separate
magistracy of the legislative department full power to hear,
consider, and adjudge that question. The Legislature puts the
question to the qualified electors. The qualified electors answer
back to the Legislature. "If it shall appear" to the Legislature that
its question has been answered in the affirmative, the amendment
is inserted and made a part of the Constitution. The Governor and
the courts have no authority to speak at any stage of the
proceedings between the sovereign and the Legislature, and when
the matter is thus concluded it is closed, and the judiciary is as
powerless to interfere as the executive.' But it was held that the
question whether the proposition submitted to the voters
constituted one, or more than one, amendment, whether the
submission was according to the requirements of the Constitution,
and whether the proposition was in fact adopted, were all judicial,
and not political, questions. 'We do not,' said Chief Justice
Whitfield, 'seek a jurisdiction not imposed upon us by the
Constitution. We could not, if we would, escape the exercise of
that jurisdiction which the Constitution has imposed upon us. In
the particular instance in which we are now acting, our duty to
know what the Constitution of the state is, and in accordance with
our oaths to support and maintain it in its integrity, imposed on us
a most difficult and embarrassing duty, one which we have not
sought, but one which, like all others, must be discharged."
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251,
it was held that it was the duty of the judicial department of the
government to determine whether the legislative department or
its officers had observed the constitutional injunctions in
attempting to amend the Constitution, and to annul their acts if
they had not done so. The case is an interesting and wellconsidered 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 subjectmatter, unless it be true, as insisted, that the judicial department
of the government has not the right to consider whether the
legislative department and its agencies have observed
constitutional injunctions in attempting to amend the Constitution,
and to annul their acts in case that they have not done so. That
such a proposition is not true seems to be indicated by
the whole history of jurisprudence in this country.' The court, after
considering the case on the merits, held that the proper
conclusion had been drawn therefrom, and that the amendment in
question was legally submitted and adopted.
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396,
presented the identical question which we have under
consideration. In reference to the contention that the Constitution
intended to delegate to the Speaker of the House of
Representatives the power to determine whether an amendment
had been adopted, and that the question was political, and not
judicial, the court observed: "The argument has often been made
in similar cases to the courts, and it is found in many dissenting
opinions; but, with probably a few exceptions, it is not found in
anyprevailing opinion."
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was
held that the constitutional requirement of publication of a
proposed constitutional provision for three months prior to the
election at which it is to be submitted to the people
is mandatory and that noncompliance therewith renders the
adoption of an amendment of no effect."
ANNEX B
MALACAANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No.
86 dated December 31, 1972, the Barangays (Citizens
Assemblies) have petitioned the Office of the President to submit
to them for resolution important national issues;
WHEREAS, one of the questions persistently mention refers to the
ratification of the Constitution proposed by the 1971
Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the
people believe that the submission of the proposed Constitution to
the Citizens Assemblies or Barangays should taken as a plebiscite
in itself in view of the fact that freedom of debate has always
been limited to the leadership in political, economic and social
fields, and that it is now necessary to bring this down to the level
of the people themselves through the Barangays or Citizens
Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the
Constitution, do hereby order that important national issues shall
from time to time be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with Presidential Decree
No. 86-A dated January 5, 1973 an that the initial referendum shall
include the matter of ratification of the Constitution proposed by
the 1971 Constitutional Convention.
The Secretary of the Department of Local Government and
Community Development shall insure the implementation of this
Order.
Done in the City of Manila, this 7th day of January in the year of
Our Lord, nineteen hundred and seventy-three.
(SGD.) FERDINAND E. MARCOS
By the President:
(SGD.) ALEJANDRO MELCHOR
Executive Secretary

Philippine Bar Association vs. COMELEC

140 SCRA 455
January 7, 1986

FACTS:

PER CURIAM:

11 petitions were filed for prohibition against the enforcement of

BP 883 which calls for special national elections on February 7,
1986 (Snap elections) for the offices of President and Vice
President of the Philippines. BP 883 in conflict with the constitution
in that it allows the President to continue holding office after the
calling of the special election.
Senator Pelaez submits that President Marcos letter of conditional
resignation did not create the actual vacancy required in Section
9, Article 7 of the Constitution which could be the basis of the
holding of a special election for President and Vice President
earlier than the regular elections for such positions in 1987. The
letter states that the President is: irrevocably vacat(ing) the
position of President effective only when the election is held and
after the winner is proclaimed and qualified as President by taking
his oath office ten (10) days after his proclamation.
The unified opposition, rather than insist on strict compliance with
the cited constitutional provision that the incumbent President
actually resign, vacate his office and turn it over to the Speaker of
the Batasang Pambansa as acting President, their standard
bearers have not filed any suit or petition in intervention for the
purpose nor repudiated the scheduled election. They have not
insisted that President Marcos vacate his office, so long as the
election is clean, fair and honest.

In a petition for declaratory relief impleading no respondents,

petitioner, as a lawyer, quotes the first paragraph of Section 5
(not Section 7 as erroneously stated) of Article XVIII of the
proposed 1986 Constitution, which provides in full as follows:
Sec. 5. The six-year term of the incumbent President and VicePresident elected in the February 7, 1986 election is, for purposes
of synchronization of elections, hereby extended to noon of June
30, 1992.
The first regular elections for the President and Vice-President
under this Constitution shall be held on the second Monday of
May, 1992.
Claiming that the said provision "is not clear" as to whom it refers,
he then asks the Court "to declare and answer the question of the
construction and definiteness as to who, among the present
incumbent President Corazon Aquino and Vice-President Salvador
Laurel and the elected President Ferdinand E. Marcos and VicePresident Arturo M. Tolentino being referred to under the said
Section 7 (sic) of ARTICLE XVIII of the TRANSITORY PROVISIONS of
the proposed 1986 Constitution refers to, . ...
The petition is dismissed outright for lack of jurisdiction and for
lack for cause of action.

ISSUE:
Is BP 883 unconstitutional, and should the Supreme Court
therefore stop and prohibit the holding of the elections
HELD:
The petitions in these cases are dismissed and the prayer for the
issuance of an injunction restraining respondents from holding the
election on February 7, 1986, in as much as there are less than
the required 10 votes to declare BP 883 unconstitutional.
The events that have transpired since December 3,as the Court
did not issue any restraining order, have turned the issue into a
political question (from the purely justiciable issue of the
questioned constitutionality of the act due to the lack of the actual
vacancy of the Presidents office) which can be truly decided only
by the people in their sovereign capacity at the scheduled
election, since there is no issue more political than the election.
The Court cannot stand in the way of letting the people decide
through their ballot, either to give the incumbent president a new
mandate or to elect a new president.

LAWYERS LEAGUE FOR A BETTER PHILIPPINES vs. AQUINO

(G.R. No. 73748 - May 22, 1986)FACTS:
On Fe bru ar y 25, 1986 , Pre si de nt C or az on Aquin o is sued
Pro cl am atio n N o. 1 ann ounc ing that she and Vice President
Laurel were taking power.2.On Ma rc h 25, 1986 ,
p roc la ma tion N o. 3 wa s is sue d pro vi ding th e bas is o f th e
Aqu ino government assumption of power by stating that
the "new government was installed through a direct exercise of
the power of the Filipino people assisted by units of the New
Armed Forces of the Philippines."
ISSUE:
Whether or not the government of Corazon Aquino is legitimate.
HELD:
Yes. The legitimacy of the Aquino government is not a justiciable
matter but belongs to the realm of politics where only the people
are the judge. The Court further held that:
1. The pe opl e hav e a cc ep ted th e Aq uin o gov e rn men t
w hic h is in e ff e c tiv e c on trol o f th e entire country;
2. It is not merely a de facto government but in fact and law a de
jure government; and
3. The community of nations has recognized the legitimacy of the
new government.
___________________________________________________________________

G.R. No. 76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.
R E S O L U T IO N

Prescinding from petitioner's lack of personality to sue or to bring

this action, (Tan vs. Macapagal, 43 SCRA 677), it is elementary
that this Court assumes no jurisdiction over petitions for
declaratory relief. More importantly, the petition amounts in effect
to a suit against the incumbent President of the Republic,
President Corazon C. Aquino, and it is equally elementary that
incumbent Presidents are immune from suit or from being brought
to court during the period of their incumbency and tenure.
The petition furthermore states no cause of action. Petitioner's
allegation of ambiguity or vagueness of the aforequoted provision
is manifestly gratuitous, it being a matter of public record and
common public knowledge that the Constitutional Commission
refers therein to incumbent President Corazon C. Aquino and VicePresident Salvador H. Laurel, and to no other persons, and
provides for the extension of their term to noon of June 30, 1992
for purposes of synchronization of elections. Hence, the second
paragraph of the cited section provides for the holding on the
second Monday of May, 1992 of the first regular elections for the
President and Vice-President under said 1986 Constitution. In
previous cases, the legitimacy of the government of President
Corazon C. Aquino was likewise sought to be questioned with the
claim that it was not established pursuant to the 1973
Constitution. The said cases were dismissed outright by this court
which held that:
Petitioners have no personality to sue and their petitions state no
cause of action. For the legitimacy of the Aquino government is
not a justiciable matter. It belongs to the realm of politics where
only the people of the Philippines are the judge. And the people
have made the judgment; they have accepted the government of
President Corazon C. Aquino which is in effective control of the
entire country so that it is not merely a de facto government but
in fact and law a de jure government. Moreover, the community of
nations has recognized the legitimacy of tlie present government.
All the eleven members of this Court, as reorganized, have sworn
to uphold the fundamental law of the Republic under her
government. (Joint Resolution of May 22, 1986 in G.R. No. 73748
[Lawyers League for a Better Philippines, etc. vs. President
Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for
Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.];
and G.R. No. 73990 [Councilor Clifton U. Ganay vs. Corazon C.
Aquino, et al.])
For the above-quoted reason, which are fully applicable to the
petition at bar, mutatis mutandis, there can be no question that
President Corazon C. Aquino and Vice-President Salvador H. Laurel
are the incumbent and legitimate President and Vice-President of
the Republic of the Philippines.or the above-quoted reasons, which
are fully applicable to the petition at bar,
ACCORDINGLY, the petition is hereby dismissed.

[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.
RESOLUTION
PADILLA, J.:
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.
It appears from the records that petitioner was first appointed
Associate Justice of the Court of Appeals on 20 June 1980 but took
his oath of office for said position only on 29 November 1982,
after serving as Assistant Solicitor General in the Office of the
Solicitor General since 1974. 1
On 17 January 1983, the Court of Appeals was reorganized and
became the Intermediate Appellate Court pursuant to Batas
Pambansa Blg. 129 entitled "An Act Reorganizing the Judiciary.
Appropriating Funds Therefor and For Other Purposes." 2 Petitioner
was appointed Appellate Justice in the First Special Cases Division
of the Intermediate Appellate Court. On 7 November 1984,
petitioner accepted an appointment to be ceased to be a member
of the Judiciary. 3
The 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 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
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
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
"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
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
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
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
"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

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
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
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
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 1991.chanrobles.com:cralaw:red
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
The resolution of this controversy is not a pleasant task for the
Court since it involves not only members of the next highest court
of the land but persons who are close to members of this Court.
But the controversy has to be resolved. The core issue in this case
is whether the present Court of Appeals is a new court such that it
would negate any claim to precedence or seniority admittedly
enjoyed by petitioner in the Court of Appeals and Intermediate
Appellate Court existing prior to Executive Order No. 33 or
whether the present Court of Appeals is merely a continuation of
the Court of Appeals and Intermediate Appellate Court existing
prior to said Executive Order No. 33.
It is the holding of the Court that the present Court of Appeals is a
new entity, different and distinct from the Court of Appeals or the
Intermediate Appellate Court existing prior to Executive Order No.
33, for it was created in the wake of the massive reorganization
launched by the revolutionary government of Corazon C. Aquino in
the aftermath of the people power (EDSA) revolution in 1986.
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 people tore themselves away from an existing
regime. This revolution also saw the unprecedented rise to power
of the Aquino government.

From the natural law point of view, the right of revolution has
been defined as "an inherent right of a people to cast out their
rulers, change their policy or effect radical reforms in their system
of government or institutions by force or a general uprising when
the legal and constitutional methods of making such change have
proved inadequate or are so obstructed as to be unavailable." 22
It has been said that "the locus of positive law-making power lies
with the people of the state" and from there is derived "the right
of the people to abolish, to reform and to alter any existing form
of government without regard to the existing constitution." 23

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.

The three (3) clauses that precede the text of the Provisional
(Freedom) Constitution, 24 read:jgc:chanrobles.com.ph

SO ORDERED.

"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;
"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
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
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.
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.
But even assuming, arguendo, that Executive Order No. 33 did not
abolish the precedence or seniority ranking resulting from
previous appointment to the Court of Appeals or Intermediate
Appellate Court existing prior to the 1986 revolution, it is believed
that President Aquino as head of then revolutionary government,
could disregard or set aside such precedence or seniority in
ranking when she made her appointments to the reorganized
Court of Appeals in 1986.
It is to be noted that, at the time of the issuance of Executive
Order No. 33, President Aquino was still exercising the powers of a
revolutionary government, encompassing both executive and
legislative powers, such that she could, if she so desired, amend,
modify or repeal any part of B.P. Blg. 129 or her own Executive
Order No. 33. It should also be remembered that the same
situation was still in force when she issued the 1986 appointments
to the Court of Appeals. In other words, President Aquino, at the
time of the issuance of the 1986 appointments, modified or
disregarded the rule embodied in B.P. Blg. 129 as amended by
Executive Order No. 33, on precedence or seniority in the case of
the petitioner, for reasons known only to her. Since the

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 1986, are recognized and upheld.

___________________________________________________________________

G.R. No. 78059 August 31, 1987

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

MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners seeking
to enjoin respondents from replacing them from their respective
positions as Barangay Captain and Barangay Councilmen of
Barangay Dolores, Municipality of Taytay, Province of Rizal.
As required by the Court, respondents submitted their Comment
on the Petition, and petitioner's their Reply to respondents'
Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo
M. De Leon was elected Barangay Captain and the other
petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino,
Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay
Councilmen of Barangay Dolores, Taytay, Rizal under Batas
Pambansa Blg. 222, otherwise known as the Barangay Election Act
of 1982.
On February 9, 1987, petitioner Alfredo M, de Leon received a
Memorandum antedated December 1, 1986 but signed by
respondent OIC Governor Benjamin Esguerra on February 8, 1987
designating respondent Florentino G. Magno as Barangay Captain
of Barangay Dolores, Taytay, Rizal. The designation made by the
OIC Governor was "by authority of the Minister of Local
Government."
Also on February 8, 1987, respondent OIC Governor signed a
Memorandum, antedated December 1, 1986 designating
respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V.
Medina, Roberto S. Paz and Teresita L. Tolentino as members of
the Barangay Council of the same Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the
Affidavit of respondent OIC Governor, the pertinent portions of
which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been appointed as
such on March 20, 1986;
That as being OIC Governor of the Province of Rizal and in the
performance of my duties thereof, I among others, have
signed as I did sign the unnumbered memorandum ordering
the replacement of all the barangay officials of all the
barangay(s) in the Municipality of Taytay, Rizal;
That the above cited memorandum dated December 1, 1986
was signed by me personally on February 8,1987;
That said memorandum was further deciminated (sic) to all
concerned the following day, February 9. 1987.

FURTHER AFFIANT SAYETH NONE.

Pasig, Metro Manila, March 23, 1987.
Before us now, petitioners pray that the subject Memoranda of
February 8, 1987 be declared null and void and that respondents
be prohibited from taking over their positions of Barangay Captain
and Barangay Councilmen, respectively. Petitioners maintain that
pursuant to Section 3 of the Barangay Election Act of 1982 (BP
Blg. 222), their terms of office "shall be six (6) years which shall
commence on June 7, 1982 and shall continue until their
successors shall have elected and shall have qualified," or up to
June 7, 1988. It is also their position that with the ratification of
the 1987 Constitution, respondent OIC Governor no longer has the
authority to replace them and to designate their successors.
On the other hand, respondents rely on Section 2, Article III of the
Provisional Constitution, promulgated on March 25, 1986, which
provided:
SECTION 2. All elective and appointive officials and
employees under the 1973 Constitution shall continue in
office until otherwise provided by proclamation or executive
order or upon the designation or appointment and
qualification of their successors, if such appointment is made
within a period of one year from February 25,1986.
By reason of the foregoing provision, respondents contend that
the terms of office of elective and appointive officials were
abolished and that petitioners continued in office by virtue of the
aforequoted provision and not because their term of six years had
not yet expired; and that the provision in the Barangay Election
Act fixing the term of office of Barangay officials to six (6) years
must be deemed to have been repealed for being inconsistent
with the aforequoted provision of the Provisional Constitution.
Examining the said provision, there should be no question that
petitioners, as elective officials under the 1973 Constitution, may
continue in office but should vacate their positions upon the
occurrence of any of the events mentioned. 1
Since the promulgation of the Provisional Constitution, there has
been no proclamation or executive order terminating the term of
elective Barangay officials. Thus, the issue for resolution is
whether or not the designation of respondents to replace
petitioners was validly made during the one-year period which
ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we
hold that February 8, 1977, should be considered as the effective
date of replacement and not December 1,1986 to which it was
ante dated, in keeping with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year
deadline, the aforequoted provision in the Provisional Constitution
must be deemed to have been overtaken by Section 27, Article
XVIII of the 1987 Constitution reading.
SECTION 27. This Constitution shall take effect immediately
upon its ratification by a majority of the votes cast in a
plebiscite held for the purpose and shall supersede all
previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2,
1987. By that date, therefore, the Provisional Constitution must be
deemed to have been superseded. Having become inoperative,
respondent OIC Governor could no longer rely on Section 2, Article
III, thereof to designate respondents to the elective positions
occupied by petitioners.
Petitioners must now be held to have acquired security of tenure
specially considering that the Barangay Election Act of 1982
declares it "a policy of the State to guarantee and promote the
autonomy of the barangays to ensure their fullest development as
self-reliant communities. 2 Similarly, the 1987 Constitution ensures
the autonomy of local governments and of political subdivisions of
which the barangays form a part, 3 and limits the President's
power to "general supervision" over local
governments. 4 Relevantly, Section 8, Article X of the same 1987
Constitution further provides in part:
Sec. 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be
three years ...

Until the term of office of barangay officials has been determined

by law, therefore, the term of office of six (6) years provided for in
the Barangay Election Act of 1982 5 should still govern.
Contrary to the stand of respondents, we find nothing inconsistent
between the term of six (6) years for elective Barangay officials
and the 1987 Constitution, and the same should, therefore, be
considered as still operative, pursuant to Section 3, Article XVIII of
the 1987 Constitution, reading:
Sec. 3. All existing laws, decrees, executive orders,
proclamations letters of instructions, and other executive
issuances not inconsistent, with this Constitution shall remain
operative until amended, repealed or revoked.
WHEREFORE, (1) The Memoranda issued by respondent OIC
Governor on February 8, 1987 designating respondents as the
Barangay Captain and Barangay Councilmen, respectively, of
Barangay Dolores, Taytay, Rizal, are both declared to be of no
legal force and effect; and (2) the Writ of Prohibition is granted
enjoining respondents perpetually from proceeding with the
ouster/take-over of petitioners' positions subject of this Petition.
Without costs.
SO ORDERED.

G.R. No. 127325 March 19, 1997

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and
MARIA ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO
PEDROSA & CARMEN PEDROSA, in their capacities as
founding members of the People's Initiative for Reforms,
Modernization and Action (PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG
KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and
LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitionersintervenors.

DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for
prohibition under Rule 65 of the Rules of Court is the right of the
people to directly propose amendments to the Constitution
through the system of initiative under Section 2 of Article XVII of
the 1987 Constitution. Undoubtedly, this demands special
attention, as this system of initiative was unknown to the people
of this country, except perhaps to a few scholars, before the
drafting of the 1987 Constitution. The 1986 Constitutional
Commission itself, through the original proponent 1 and the main
sponsor 2 of the proposed Article on Amendments or Revision of
the Constitution, characterized this system as
"innovative". 3 Indeed it is, for both under the 1935 and 1973
Constitutions, only two methods of proposing amendments to, or
revision of, the Constitution were recognized, viz., (1) by Congress
upon a vote of three-fourths of all its members and (2) by a
constitutional convention. 4 For this and the other reasons
hereafter discussed, we resolved to give due course to this
petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed
with public respondent Commission on Elections (hereafter,
COMELEC) a "Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, by People's Initiative" (hereafter, Delfin
Petition) 5 wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over
the country;
2. Causing the necessary publications of said Order and the
attached "Petition for Initiative on the 1987 Constitution, in
newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of
the Philippines, to assist Petitioners and volunteers, in

establishing signing stations at the time and on the dates

designated for the purpose.
Delfin alleged in his petition that he is a founding member of the
Movement for People's Initiative, 6 a group of citizens desirous to
avail of the system intended to institutionalize people power; that
he and the members of the Movement and other volunteers
intend to exercise the power to directly propose amendments to
the Constitution granted under Section 2, Article XVII of the
Constitution; that the exercise of that power shall be conducted in
proceedings under the control and supervision of the COMELEC;
that, as required in COMELEC Resolution No. 2300, signature
stations shall be established all over the country, with the
assistance of municipal election registrars, who shall verify the
signatures affixed by individual signatories; that before the
Movement and other volunteers can gather signatures, it is
necessary that the time and dates to be designated for the
purpose be first fixed in an order to be issued by the COMELEC;
and that to adequately inform the people of the electoral process
involved, it is likewise necessary that the said order, as well as the
Petition on which the signatures shall be affixed, be published in
newspapers of general and local circulation, under the control and
supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be
amended are Sections 4 and 7 of Article VI, 7Section 4 of Article
VII, 8 and Section 8 of Article X 9 of the Constitution. Attached to
the petition is a copy of a "Petition for Initiative on the 1987
Constitution" 10 embodying the proposed amendments which
consist in the deletion from the aforecited sections of the
provisions concerning term limits, and with the following
proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL
ELECTIVE GOVERNMENT OFFICIALS, AMENDING FOR THE
PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF
ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987
PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be
submitted to the people, and after it is signed by at least twelve
per cent of the total number of registered voters in the country it
will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the
number UND 96-037 (INITIATIVE), the COMELEC, through its
Chairman, issued an Order 11 (a) directing Delfin "to cause the
publication of the petition, together with the attached Petition for
Initiative on the 1987 Constitution (including the proposal,
proposed constitutional amendment, and the signature form), and
the notice of hearing in three (3) daily newspapers of general
circulation at his own expense" not later than 9 December 1996;
and (b) setting the case for hearing on 12 December 1996 at
10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the
following appeared: Delfin and Atty. Pete Q. Quadra;
representatives of the People's Initiative for Reforms,
Modernization and Action (PIRMA); intervenor-oppositor Senator
Raul S. Roco, together with his two other lawyers, and
representatives of, or counsel for, the Integrated Bar of the
Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK),
Public Interest Law Center, and Laban ng Demokratikong Pilipino
(LABAN). 12 Senator Roco, on that same day, filed a Motion to
Dismiss the Delfin Petition on the ground that it is not the
initiatory petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and
the oppositors to file their "memoranda and/or
oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein Senator Miriam
Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin
filed this special civil action for prohibition raising the following
arguments:
(1) The constitutional provision on people's initiative to
amend the Constitution can only be implemented by law to
be passed by Congress. No such law has been passed; in fact,
Senate Bill No. 1290 entitled An Act Prescribing and
Regulating Constitution Amendments by People's Initiative,
which petitioner Senator Santiago filed on 24 November
1995, is still pending before the Senate Committee on
Constitutional Amendments.

(2) It is true that R.A. No. 6735 provides for three systems of
initiative, namely, initiative on the Constitution, on statutes,
and on local legislation. However, it failed to provide any
subtitle on initiative on the Constitution, unlike in the other
modes of initiative, which are specifically provided for in
Subtitle II and Subtitle III. This deliberate omission indicates
that the matter of people's initiative to amend the
Constitution was left to some future law. Former Senator
Arturo Tolentino stressed this deficiency in the law in his
privilege speech delivered before the Senate in 1994: "There
is not a single word in that law which can be considered as
implementing [the provision on constitutional initiative]. Such
implementing provisions have been obviously left to a
separate law.
(3) Republic Act No. 6735 provides for the effectivity of the
law after publication in print media. This indicates that the
Act covers only laws and not constitutional amendments
because the latter take effect only upon ratification and not
after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January
1991 to govern "the conduct of initiative on the Constitution
and initiative and referendum on national and local laws,
is ultra vires insofar asinitiative on amendments to the
Constitution is concerned, since the COMELEC has no power
to provide rules and regulations for the exercise of the right
of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.
(5) The people's initiative is limited to amendments to the
Constitution, not to revision thereof. Extending or lifting of
term limits constitutes a revision and is, therefore, outside
the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for
people's initiative; neither the COMELEC nor any other
government department, agency, or office has realigned
funds for the purpose.
To justify their recourse to us via the special civil action for
prohibition, the petitioners allege that in the event the COMELEC
grants the Delfin Petition, the people's initiative spearheaded by
PIRMA would entail expenses to the national treasury for general
re-registration of voters amounting to at least P180 million, not to
mention the millions of additional pesos in expenses which would
be incurred in the conduct of the initiative itself. Hence, the
transcendental importance to the public and the nation of the
issues raised demands that this petition for prohibition be settled
promptly and definitely, brushing aside technicalities of procedure
and calling for the admission of a taxpayer's and legislator's
suit. 14 Besides, there is no other plain, speedy, and adequate
remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to
comment on the petition within a non-extendible period of ten
days from notice; and (b) issued a temporary restraining order,
effective immediately and continuing until further orders,
enjoining public respondent COMELEC from proceeding with the
Delfin Petition, and private respondents Alberto and Carmen
Pedrosa from conducting a signature drive for people's initiative to
amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra,
filed their Comment 15 on the petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE
NATIONAL TREASURY FOR GENERAL REGISTRATION OF
VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED
EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC
GRANTS THE PETITION FILED BY RESPONDENT DELFIN
BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE
NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE
PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE
SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF
RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR
PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO
THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM
OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE
GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN
AND HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON
THE SIGNATURE GATHERING WHICH BY LAW COMELEC IS

DUTY BOUND "TO SUPERVISE CLOSELY" PURSUANT TO ITS

"INITIATORY JURISDICTION" UPHELD BY THE HONORABLE
COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE
CASE OF SUBIC BAY METROPOLITAN AUTHORITY
VS.COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE
ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE
INITIATIVE TO PROPOSE AMENDMENTS TO THE
CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE
BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY
PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON
JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD
BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26,
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE
THE HONORABLE COURT SAID: "THE COMMISSION ON
ELECTIONS CAN DO NO LESS BY SEASONABLY AND
JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR
BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF
THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO.
1290 CONTAINS A PROVISION DELEGATING TO THE COMELEC
THE POWER TO "PROMULGATE SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE
PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED
AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE
OF ELECTIVE OFFICIALS PROVIDED UNDER THE 1987
CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION.
IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE
CONSTITUTION. REVISION CONTEMPLATES A REEXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE
HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP.
412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY
JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own
behalf a Comment 16 which starts off with an assertion that the
instant petition is a "knee-jerk reaction to a draft 'Petition for
Initiative on the 1987 Constitution'. . . which is not formally filed
yet." What he filed on 6 December 1996 was an "Initiatory
Pleading" or "Initiatory Petition," which was legally necessary to
start the signature campaign to amend the Constitution or to put
the movement to gather signatures under COMELEC power and
function. On the substantive allegations of the petitioners, Delfin
maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law,
R.A. No. 6735, which governs the conduct of initiative to
amend the Constitution. The absence therein of a subtitle for
such initiative is not fatal, since subtitles are not
requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the
proposition in an initiative to amend the Constitution
approved by the majority of the votes cast in the plebiscite
shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra
vires is contradicted by (a) Section 2, Article IX-C of the
Constitution, which grants the COMELEC the power to enforce
and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and
recall; and (b) Section 20 of R.A. 6735, which empowers the
COMELEC to promulgate such rules and regulations as may
be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but
mere amendment to, the Constitution because it seeks to
alter only a few specific provisions of the Constitution, or
more specifically, only those which lay term limits. It does not
seek to reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin
considers petitioners' estimate of P180 million as unreliable, for
only the COMELEC can give the exact figure. Besides, if there will
be a plebiscite it will be simultaneous with the 1997 Barangay
Elections. In any event, fund requirements for initiative will be a
priority government expense because it will be for the exercise of
the sovereign power of the people.

In the Comment 17 for the public respondent COMELEC, filed also

on 2 January 1997, the Office of the Solicitor General contends
that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to
amend the Constitution. Its Section 2 on Statement of Policy
explicitly affirms, recognizes, and guarantees that power; and
its Section 3, which enumerates the three systems
of initiative, includes initiative on the Constitution and defines
the same as the power to propose amendments to the
Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not
necessary in R.A. No. 6735 because, being national in scope,
that system of initiative is deemed included in the subtitle on
National Initiative and Referendum; and Senator Tolentino
simply overlooked pertinent provisions of the law when he
claimed that nothing therein was provided for initiative on the
Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material
proof that R.A. No. 6735 does not deal with initiative on the
Constitution.
(4) Extension of term limits of elected officials constitutes a
mere amendment to the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under
Section 20 of R.A. No. 6735 and under the Omnibus Election
Code. The rule-making power of the COMELEC to implement
the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the
temporary restraining order; (b) noted the aforementioned
Comments and the Motion to Lift Temporary Restraining Order
filed by private respondents through Atty. Quadra, as well as the
latter's Manifestation stating that he is the counsel for private
respondents Alberto and Carmen Pedrosa only and the Comment
he filed was for the Pedrosas; and (c) granted the Motion for
Intervention filed on 6 January 1997 by Senator Raul Roco and
allowed him to file his Petition in Intervention not later than 20
January 1997; and (d) set the case for hearing on 23 January 1997
at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang
Konstitusyon (DIK) and the Movement of Attorneys for
Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a
Motion for Intervention. Attached to the motion was their Petition
in Intervention, which was later replaced by an Amended Petition
in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a
mere amendment to, but a revision of, the
Constitution because, in the words of Fr.
Joaquin Bernas, S.J., 18 it would involve a
change from a political philosophy that rejects
unlimited tenure to one that accepts unlimited
tenure; and although the change might appear
to be an isolated one, it can affect other
provisions, such as, on synchronization of
elections and on the State policy of
guaranteeing equal access to opportunities for
public service and prohibiting political
dynasties. 19 Arevision cannot be done
by initiative which, by express provision of
Section 2 of Article XVII of the Constitution, is
limited to amendments.
(2) The prohibition against reelection of the President and the
limits provided for all other national and local
elective officials are based on the philosophy of
governance, "to open up the political arena to
as many as there are Filipinos qualified to
handle the demands of leadership, to break the
concentration of political and economic powers
in the hands of a few, and to promote effective
proper empowerment for participation in policy
and decision-making for the common good";
hence, to remove the term limits is to negate
and nullify the noble vision of the 1987
Constitution.
(3) The Delfin proposal runs counter to the purpose of
initiative, particularly in a conflict-of-interest

situation. Initiative is intended as a fallback

position that may be availed of by the people
only if they are dissatisfied with the
performance of their elective officials, but not
as a premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be
called the enabling law that implements the
people's initiative on amendments to the Constitution. It fails
to state (a) the proper parties who may file the petition, (b)
the appropriate agency before whom the petition is to be
filed, (c) the contents of the petition, (d) the publication of
the same, (e) the ways and means of gathering the
signatures of the voters nationwide and 3% per legislative
district, (f) the proper parties who may oppose or question
the veracity of the signatures, (g) the role of the COMELEC in
the verification of the signatures and the sufficiency of the
petition, (h) the appeal from any decision of the COMELEC, (I)
the holding of a plebiscite, and (g) the appropriation of funds
for such people's initiative. Accordingly, there being no
enabling law, the COMELEC has no jurisdiction to hear
Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or
remedied by COMELEC Resolution No. 2300, since the
COMELEC is without authority to legislate the procedure for a
people's initiativeunder Section 2 of Article XVII of the
Constitution. That function exclusively pertains to Congress.
Section 20 of R.A. No. 6735 does not constitute a legal basis
for the Resolution, as the former does not set a sufficient
standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law
that implements the people's right to initiate constitutional
amendments. This law is a consolidation of Senate Bill No. 17 and
House Bill No. 21505; he co-authored the House Bill and even
delivered a sponsorship speech thereon. He likewise submits that
the COMELEC was empowered under Section 20 of that law to
promulgate COMELEC Resolution No. 2300. Nevertheless, he
contends that the respondent Commission is without jurisdiction
to take cognizance of the Delfin Petition and to order its
publication because the said petition is not the initiatory pleading
contemplated under the Constitution, Republic Act No. 6735, and
COMELEC Resolution No. 2300. What vests jurisdiction upon the
COMELEC in an initiative on the Constitution is the filing of a
petition for initiative which is signedby the required number of
registered voters. He also submits that the proponents of a
constitutional amendment cannot avail of the authority and
resources of the COMELEC to assist them is securing the required
number of signatures, as the COMELEC's role in an initiative on
the Constitution is limited to the determination of the sufficiency
of the initiative petition and the call and supervision of a
plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which
it attached a Petition in Intervention raising the following
arguments:
(1) Congress has failed to enact an enabling law mandated
under Section 2, Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the
required implementing law on the initiative to amend the
Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that
it does not have the required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution,
which can be proposed only by Congress or a constitutional
convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the
Motions for Intervention filed by the DIK and MABINI and by the
IBP, as well as the Motion for Leave to Intervene filed by LABAN;
(b) admitting the Amended Petition in Intervention of DIK and
MABINI, and the Petitions in Intervention of Senator Roco and of
the IBP; (c) requiring the respondents to file within a
nonextendible period of five days their Consolidated Comments on
the aforesaid Petitions in Intervention; and (d) requiring LABAN to
file its Petition in Intervention within a nonextendible period of
three days from notice, and the respondents to comment thereon

within a nonextendible period of five days from receipt of the said

Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued
on the following pivotal issues, which the Court formulated in light
of the allegations and arguments raised in the pleadings so far
filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a
System of Initiative and Referendum and Appropriating Funds
Therefor, was intended to include or cover initiative on
amendments to the Constitution; and if so, whether the Act,
as worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In
re: Rules and Regulations Governing the Conduct of Initiative
on the Constitution, and Initiative and Referendum on
National and Local Laws) regarding the conduct of initiative
on amendments to the Constitution is valid, considering the
absence in the law of specific provisions on the conduct of
such initiative.
3. Whether the lifting of term limits of elective national and
local officials, as proposed in the draft "Petition for Initiative
on the 1987 Constitution," would constitute a revision of, or
an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has
jurisdiction over, a petition solely intended to obtain an order
(a) fixing the time and dates for signature gathering; (b)
instructing municipal election officers to assist Delfin's
movement and volunteers in establishing signature stations;
and (c) directing or causing the publication of, inter alia, the
unsigned proposed Petition for Initiative on the 1987
Constitution.
5. Whether it is proper for the Supreme Court to take
cognizance of the petition when there is a pending case
before the COMELEC.
After hearing them on the issues, we required the parties to
submit simultaneously their respective memoranda within twenty
days and requested intervenor Senator Roco to submit copies of
the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention
wherein it adopts the allegations and arguments in the main
Petition. It further submits that the COMELEC should have
dismissed the Delfin Petition for failure to state a sufficient cause
of action and that the Commission's failure or refusal to do so
constituted grave abuse of discretion amounting to lack of
jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of
both the Journal and the Record of the House of Representatives
relating to the deliberations of House Bill No. 21505, as well as the
transcripts of stenographic notes on the proceedings of the
Bicameral Conference Committee, Committee on Suffrage and
Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and
Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their
Consolidated Comments on the Petitions in Intervention of Senator
Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in
due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to
this special civil action.
For a more logical discussion of the formulated issues, we shall
first take up the fifth issue which appears to pose a prejudicial
procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN
THE COMELEC OF THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no
serious attention to the fifth issue, i.e., whether it is proper for this
Court to take cognizance of this special civil action when there is a
pending case before the COMELEC. The petitioners provide an
affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the

petition filed by private respondent Delfin. This being so, it
becomes imperative to stop the Comelec from proceeding
any further, and under the Rules of Court, Rule 65, Section 2,
a petition for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ
issuing out of a court of superior jurisdiction and directed to
an inferior court, for the purpose of preventing the inferior
tribunal from usurping a jurisdiction with which it is not
legally vested. (People v. Vera, supra., p. 84). In this case the
writ is an urgent necessity, in view of the highly divisive and
adverse environmental consequences on the body politic of
the questioned Comelec order. The consequent climate of
legal confusion and political instability begs for judicial
statesmanship.
30. In the final analysis, when the system of constitutional
law is threatened by the political ambitions of man, only the
Supreme Court
can save a nation in peril and uphold the paramount majesty
of the Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a
motion to dismiss the Delfin Petition on the ground that the
COMELEC has no jurisdiction or authority to entertain the
petition. 26 The COMELEC made no ruling thereon evidently
because after having heard the arguments of Delfin and the
oppositors at the hearing on 12 December 1996, it required them
to submit within five days their memoranda or
oppositions/memoranda. 27 Earlier, or specifically on 6 December
1996, it practically gave due course to the Delfin Petition by
ordering Delfin to cause the publication of the petition, together
with the attached Petition for Initiative, the signature form, and
the notice of hearing; and by setting the case for hearing. The
COMELEC's failure to act on Roco's motion to dismiss and its
insistence to hold on to the petition rendered ripe and viable the
instant petition under Section 2 of Rule 65 of the Rules of Court,
which provides:
Sec. 2. Petition for prohibition. Where the proceedings of
any tribunal, corporation, board, or person, whether
exercising functions judicial or ministerial, are without or in
excess of its or his jurisdiction, or with grave abuse of
discretion, and there is no appeal or any other plain, speedy
and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper
court alleging the facts with certainty and praying that
judgment be rendered commanding the defendant to desist
from further proceedings in the action or matter specified
therein.
It must also be noted that intervenor Roco claims that the
COMELEC has no jurisdiction over the Delfin Petition because the
said petition is not supported by the required minimum number of
signatures of registered voters. LABAN also asserts that the
COMELEC gravely abused its discretion in refusing to dismiss the
Delfin Petition, which does not contain the required number of
signatures. In light of these claims, the instant case may likewise
be treated as a special civil action for certiorari under Section I of
Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his
Memorandum, this Court may brush aside technicalities of
procedure in
cases of transcendental importance. As we stated in Kilosbayan,
Inc. v. Guingona, Jr. 28
A party's standing before this Court is a procedural
technicality which it may, in the exercise of its discretion, set
aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside
this technicality because the transcendental importance to
the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must,
technicalities of procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF
INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, BUT IS,
UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.

Sec. 2. Amendments to this Constitution may likewise be

directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be
represented by at least three per centum of the registered
voters therein. No amendment under this section shall be
authorized within five years following the ratification of this
Constitution nor oftener than once every five years
thereafter.
The Congress shall provide for the implementation of the exercise
of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas,
a member of the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot
operate. Thus, although this mode of amending the
Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is
dependent on congressional action.
Bluntly stated, the right of the people to directly propose
amendments to the Constitution through the system of
initiative would remain entombed in the cold niche of the
Constitution until Congress provides for its implementation.
Stated otherwise, while the Constitution has recognized or
granted that right, the people cannot exercise it if Congress,
for whatever reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the
draft Article on Amendment or Revision proposed by the
Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7
(Proposed Resolution No. 332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be
proposed:
(a) by the National Assembly upon a vote of three-fourths of
all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as
provided for in Article___ Section ___of the Constitution.

31

After several interpellations, but before the period of

amendments, the Committee submitted a new formulation of
the concept of initiative which it denominated as Section 2;
thus:
MR. SUAREZ. Thank you, Madam President. May we
respectfully call attention of the Members of the
Commission that pursuant to the mandate given to us
last night, we submitted this afternoon a complete
Committee Report No. 7 which embodies the proposed
provision governing the matter of initiative. This is now
covered by Section 2 of the complete committee report.
With the permission of the Members, may I quote
Section 2:
The people may, after five years from the date of the last
plebiscite held, directly propose amendments to this
Constitution thru initiative upon petition of at least ten
percent of the registered voters.
This completes the blanks appearing in the original
Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for
carrying out Section 2 are left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory
questions.
First, on Section 1 on the matter of initiative upon petition of
at least 10 percent, there are no details in the provision on
how to carry this out. Do we understand, therefore, that we
are leaving this matter to the legislature?

Section 2 of Article XVII of the Constitution provides:

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for

as long as the legislature does not pass the necessary
implementing law on this, this will not operate?
MR. SUAREZ. That matter was also taken up during the
committee hearing, especially with respect to the budget
appropriations which would have to be legislated so that the
plebiscite could be called. We deemed it best that this matter
be left to the legislature. The Gentleman is right. In any
event, as envisioned, no amendment through the power of
initiative can be called until after five years from the date of
the ratification of this Constitution. Therefore, the first
amendment that could be proposed through the exercise of
this initiative power would be after five years. It is reasonably
expected that within that five-year period, the National
Assembly can come up with the appropriate rules governing
the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature the
details on how this is to be carried out is it possible that, in
effect, what will be presented to the people for ratification is
the work of the legislature rather than of the people? Does
this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because
even the legislature itself as a body could propose that
amendment, maybe individually or collectively, if it fails to
muster the three-fourths vote in order to constitute itself as a
constituent assembly and submit that proposal to the people
for ratification through the process of an initiative.
xxx xxx xxx
MS. AQUINO. Do I understand from the sponsor that the
intention in the proposal is to vest constituent power in the
people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the
proposal in terms of institutionalizing popular participation in
the drafting of the Constitution or in the amendment thereof,
but I would have a lot of difficulties in terms of accepting the
draft of Section 2, as written. Would the sponsor agree with
me that in the hierarchy of legal mandate, constituent power
has primacy over all other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in
the hierarchy of legal values, the Constitution is source of all
legal mandates and that therefore we require a great deal of
circumspection in the drafting and in the amendments of the
Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of
constituent power we have a separate article in the
constitution that would specifically cover the process and the
modes of amending the Constitution?

Constitution as embodied in Section 1. The committee

members felt that this system of initiative should not extend
to the revision of the entire Constitution, so we removed it
from the operation of Section 1 of the proposed Article on
Amendment or Revision. 34
xxx xxx xxx
MS. AQUINO. In which case, I am seriously bothered by
providing this process of initiative as a separate section in the
Article on Amendment. Would the sponsor be amenable to
accepting an amendment in terms of realigning Section 2 as
another subparagraph (c) of Section 1, instead of setting it up
as another separate section as if it were a self-executing
provision?
MR. SUAREZ. We would be amenable except that, as we
clarified a while ago, this process of initiative is limited to the
matter of amendment and should not expand into a
revision which contemplates a total overhaul of the
Constitution. That was the sense that was conveyed by the
Committee.
MS. AQUINO. In other words, the Committee was attempting
to distinguish the coverage of modes (a) and (b) in Section 1
to include the process of revision; whereas theprocess of
initiation to amend, which is given to the public, would only
apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned
in the Committee. 35
Amendments to the proposed Section 2 were thereafter
introduced by then Commissioner Hilario G. Davide, Jr., which the
Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to
substitute the entire Section 2 with the following:
MR. DAVIDE. Madam President, I have modified the proposed
amendment after taking into account the modifications
submitted by the sponsor himself and the honorable
Commissioners Guingona, Monsod, Rama, Ople, de los Reyes
and Romulo. The modified amendment in substitution of the
proposed Section 2 will now read as follows: "SECTION 2.
AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE
UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE
TOTAL NUMBER Of REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST
THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED
WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS
THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the
proposed amendment is reflective of the sense contained in
Section 2 of our completed Committee Report No. 7, we
accept the proposed amendment. 36

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the
provisions are drafted now, to again concede to the
legislature the process or the requirement of determining the
mechanics of amending the Constitution by people's
initiative?
MR. SUAREZ. The matter of implementing this could very well
be placed in the hands of the National Assembly, not unless
we can incorporate into this provision the mechanics that
would adequately cover all the conceivable situations. 33

The interpellations which ensued on the proposed modified

amendment to Section 2 clearly showed that it was a legislative
act which must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it
possible for the legislature to set forth certain procedures to
carry out the initiative. . .?
MR. DAVIDE. It can.
xxx xxx xxx

It was made clear during the interpellations that the

aforementioned Section 2 is limited to proposals to AMEND not
to REVISE the Constitution; thus:
MR. SUAREZ. . . . This proposal was suggested on the theory
that this matter of initiative, which came about because of
the extraordinary developments this year, has to be
separated from the traditional modes of amending the

MR. ROMULO. But the Commissioner's amendment does not

prevent the legislature from asking another body to set the
proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the
implementation of this particular right would be subject to

legislation, provided the legislature cannot determine

anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the
determination of the proper form for submission to the
people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive
right to initiate. In other words, none of the procedures to be
proposed by the legislative body must diminish or impair the
right conceded here.
MR. ROMULO. In that provision of the Constitution can the
procedures which I have discussed be legislated?
MR. DAVIDE. Yes.

37

Commissioner Davide also reaffirmed that his modified

amendment strictly confines initiative to AMENDMENTS to NOT
REVISION of the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's
proposed amendment on line 1 refers to "amendment." Does
it not cover the word "revision" as defined by Commissioner
Padilla when he made the distinction between the words
"amendments" and "revision"?

again approved on Second and Third Readings on 1 August

1986. 42
However, the Committee on Style recommended that the
approved Section 2 be amended by changing "percent" to "per
centum" and "thereof" to "therein" and deleting the phrase "by
law" in the second paragraph so that said paragraph reads: The
Congress 43 shall provide for the implementation of the exercise of
this right. 44 This amendment was approved and is the text of the
present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of
initiative on the Constitution under Section 2 of Article XVII of the
Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of
this right? Those who answer the question in the affirmative, like
the private respondents and intervenor Senator Roco, point to us
R.A. No. 6735.
There is, of course, no other better way for Congress to implement
the exercise of the right than through the passage of a statute or
legislative act. This is the essence or rationale of the last minute
amendment by the Constitutional Commission to substitute the
last paragraph of Section 2 of Article XVII then reading:
The Congress 45 shall by law provide for the implementation
of the exercise of this right.
with

MR. DAVIDE. No, it does not, because "amendments" and

"revision" should be covered by Section 1. So insofar as
initiative is concerned, it can only relate to "amendments"
not "revision." 38
Commissioner Davide further emphasized that the process of
proposing amendments through initiative must be more rigorous
and difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this
proposal, what is involved is an amendment to the
Constitution. To amend a Constitution would ordinarily require
a proposal by the National Assembly by a vote of threefourths; and to call a constitutional convention would require
a higher number. Moreover, just to submit the issue of calling
a constitutional convention, a majority of the National
Assembly is required, the import being that the process of
amendment must be made more rigorous and difficult than
probably initiating an ordinary legislation or putting an end to
a law proposed by the National Assembly by way of a
referendum. I cannot agree to reducing the requirement
approved by the Committee on the Legislative because it
would require another voting by the Committee, and the
voting as precisely based on a requirement of 10 percent.
Perhaps, I might present such a proposal, by way of an
amendment, when the Commission shall take up the Article
on the Legislative or on the National Assembly on plenary
sessions. 39
The Davide modified amendments to Section 2 were subjected to
amendments, and the final version, which the Commission
approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as
amended, reads as follows: "AMENDMENT TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED
BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION
OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER
OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE
PERCENT OF THE REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS
RIGHT. 40
The entire proposed Article on Amendments or Revisions was
approved on second reading on 9 July 1986.41 Thereafter,
upon his motion for reconsideration, Commissioner Gascon
was allowed to introduce an amendment to Section 2 which,
nevertheless, was withdrawn. In view thereof, the Article was

The Congress shall provide for the implementation of the

exercise of this right.
This substitute amendment was an investiture on Congress of
a power to provide for the rules implementing the exercise of
the right. The "rules" means "the details on how [the right] is
to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended
to cover initiative to propose amendments to the Constitution. The
Act is a consolidation of House Bill No. 21505 and Senate Bill No.
17. The former was prepared by the Committee on Suffrage and
Electoral Reforms of the House of Representatives on the basis of
two House Bills referred to it, viz., (a) House Bill No. 497, 47 which
dealt with the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b)
House Bill No. 988, 48 which dealt with the subject matter of House
Bill No. 497, as well as with initiative and referendum under
Section 3 of Article X (Local Government) and initiative provided
for in Section 2 of Article XVII of the Constitution. Senate Bill No.
17 49 solely dealt with initiative and referendum concerning
ordinances or resolutions of local government units. The Bicameral
Conference Committee consolidated Senate Bill No. 17 and House
Bill No. 21505 into a draft bill, which was subsequently approved
on 8 June 1989 by the Senate 50and by the House of
Representatives. 51 This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of
Congress to "provide for the implementation of the exercise of the
right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC,
Section 2 of the Act does not suggest an initiative on amendments
to the Constitution. The said section reads:
Sec. 2. Statement and Policy. The power of the people
under a system of initiative and referendum to directly
propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by
any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized
and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a
delayed afterthought. That word is neither germane nor
relevant to said section, which exclusively relates to initiative
and referendum on national laws and local laws, ordinances,
and resolutions. That section is silent as to amendments on
the Constitution. As pointed out earlier, initiative on the
Constitution is confined only to proposals to AMEND. The
people are not accorded the power to "directly propose,

enact, approve, or reject, in whole or in part, the

Constitution" through the system of initiative. They can only
do so with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this
section was lifted from Section 1 of Senate Bill No. 17, which
solely referred to a statement of policy on local initiative and
referendum and appropriately used the phrases "propose and
enact," "approve or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act
defines initiative on amendments to the Constitution and
mentions it as one of the three systems of initiative, and that
Section 5 (Requirements) restates the constitutional requirements
as to the percentage of the registered voters who must submit the
proposal. But unlike in the case of the other systems of initiative,
the Act does not provide for the contents of a petition
forinitiative on the Constitution. Section 5, paragraph (c) requires,
among other things, statement of the proposed law sought to be
enacted, approved or rejected, amended or repealed, as the case
may be. It does not include, as among the contents of the petition,
the provisions of the Constitution sought to be amended, in the
case of initiative on the Constitution. Said paragraph (c) reads in
full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be
enacted, approved or rejected, amended or repealed, as
the case may be;

a.1 Initiative on the Constitution which refers to a petition

proposing amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing
to enact a national legislation; and
a.3 Initiative on local legislation which refers to a petition
proposing to enact a regional, provincial, city, municipal, or
barangay law, resolution or ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should
have been a subtitle on initiative on amendments to the
Constitution. 53
A further examination of the Act even reveals that the subtitling is
not accurate. Provisions not germane to the subtitle on National
Initiative and Referendum are placed therein, like (1) paragraphs
(b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution
approved by the majority of the votes cast in the plebiscite
shall become effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by
majority of the votes cast in an election called for the
purpose shall become effective fifteen (15) days after
certification and proclamation of the Commission. (Emphasis
supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to
indirect initiative with the legislative bodies of local governments;
thus:

c.2 the proposition;

c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;

Sec. 11. Indirect Initiative. Any duly accredited

people's organization, as defined by law, may file a
petition for indirect initiative with the House of
Representatives, and other legislative bodies. . . .

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than
one hundred (100) words which shall be legibly written or
printed at the top of every page of the petition. (Emphasis
supplied).
The use of the clause "proposed laws sought to be enacted,
approved or rejected, amended or repealed" only strengthens
the conclusion that Section 2, quoted earlier, excludes
initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and
Referendum (Subtitle II) and for Local Initiative and Referendum
(Subtitle III), no subtitle is provided for initiative on the
Constitution. This conspicuous silence as to the latter simply
means that the main thrust of the Act is initiative and referendum
on national and local laws. If Congress intended R.A. No. 6735 to
fully provide for the implementation of the initiative on
amendments to the Constitution, it could have provided for a
subtitle therefor, considering that in the order of things, the
primacy of interest, or hierarchy of values, the right of the people
to directly propose amendments to the Constitution is far more
important than the initiative on national and local laws.
We cannot accept the argument that the initiative on
amendments to the Constitution is subsumed under the subtitle
on National Initiative and Referendum because it is national in
scope. Our reading of Subtitle II (National Initiative and
Referendum) and Subtitle III (Local Initiative and Referendum)
leaves no room for doubt that the classification is not based on
the scope of the initiative involved, but on
its nature and character. It is "national initiative," if what is
proposed to be adopted or enacted is a national law, or a law
which only Congress can pass. It is "local initiative" if what is
proposed to be adopted or enacted is a law, ordinance, or
resolution which only the legislative bodies of the governments of
the autonomous regions, provinces, cities, municipalities, and
barangays can pass. This classification of initiative
into national and local is actually based on Section 3 of the Act,
which we quote for emphasis and clearer understanding:
Sec. 3. Definition of terms
xxx xxx xxx
There are three (3) systems of initiative, namely:

and (3) Section 12 on Appeal, since it applies to decisions of

the COMELEC on the findings of sufficiency or insufficiency of
the petition for initiative or referendum, which could be
petitions for both national and localinitiative and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under
subtitle III on Local Initiative and Referendum is
misplaced, 54 since the provision therein applies to both national
and local initiative and referendum. It reads:
Sec. 18. Authority of Courts. Nothing in this Act shall
prevent or preclude the proper courts from declaring null and
void any proposition approved pursuant to this Act for
violation of the Constitution or want of capacity of the local
legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and
care in providing for the details in the implementation of initiative
and referendum on national and local legislation thereby giving
them special attention, it failed, rather intentionally, to do so on
the system of initiative on amendments to the Constitution. Anent
the initiative on national legislation, the Act provides for the
following:
(a) The required percentage of registered voters to sign the
petition and the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the
required number of votes for its approval;
(d) The certification by the COMELEC of the approval of the
proposition;
(e) The publication of the approved proposition in the Official
Gazette or in a newspaper of general circulation in the Philippines;
and
(f) The effects of the approval or rejection of the proposition.
As regards local initiative, the Act provides for the following:

55

(a) The preliminary requirement as to the number of signatures of

registered voters for the petition;
(b) The submission of the petition to the local legislative body
concerned;
(c) The effect of the legislative body's failure to favorably act
thereon, and the invocation of the power of initiative as a
consequence thereof;

and determinable to which the delegate must conform in the

performance of his functions. 61 A sufficient standard is one which
defines legislative policy, marks its limits, maps out its boundaries
and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be
effected. 62
Insofar as initiative to propose amendments to the Constitution is
concerned, R.A. No. 6735 miserably failed to satisfy both
requirements in subordinate legislation. The delegation of the
power to the COMELEC is then invalid.

(d) The formulation of the proposition;

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

56

Upon the other hand, as to initiative on amendments to the

Constitution, R.A. No. 6735, in all of its twenty-three sections,
merely (a) mentions, the word "Constitution" in Section 2; (b)
defines "initiative on the Constitution" and includes it in the
enumeration of the three systems of initiative in Section 3; (c)
speaks of "plebiscite" as the process by which the proposition in
an initiative on the Constitution may be approved or rejected by
the people; (d) reiterates the constitutional requirements as to the
number of voters who should sign the petition; and (e) provides
for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more
important or the paramount system of initiative. RA. No. 6735 thus
delivered a humiliating blow to the system of initiative on
amendments to the Constitution by merely paying it a reluctant lip
service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is
incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution
is concerned. Its lacunae on this substantive matter are fatal and
cannot be cured by "empowering" the COMELEC "to promulgate
such rules and regulations as may be necessary to carry out the
purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or
as expressed in a Latin maxim: potestas delegata non delegari
potest. 59 The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section
28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under
Section 23(2) of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.

It logically follows that the COMELEC cannot validly promulgate

rules and regulations to implement the exercise of the right of the
people to directly propose amendments to the Constitution
through the system of initiative. It does not have that power under
R.A. No. 6735. Reliance on the COMELEC's power under Section
2(1) of Article IX-C of the Constitution is misplaced, for the laws
and regulations referred to therein are those promulgated by the
COMELEC under (a) Section 3 of Article IX-C of the Constitution, or
(b) a law where subordinate legislation is authorized and which
satisfies the "completeness" and the "sufficient standard" tests.
IV

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies.

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT

PRESCRIBES RULES AND REGULATIONS ON THE
CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.

60

Empowering the COMELEC, an administrative body exercising

quasi-judicial functions, to promulgate rules and regulations is a
form of delegation of legislative authority under no. 5 above.
However, in every case of permissible delegation, there must be a
showing that the delegation itself is valid. It is valid only if the law
(a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate; and (b)
fixes a standard the limits of which are sufficiently determinate

COMELEC ACTED WITHOUT JURISDICTION OR WITH

GRAVE ABUSE OF DISCRETION IN ENTERTAINING THE
DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full
compliance with the power of Congress to implement the right to
initiate constitutional amendments, or that it has validly vested
upon the COMELEC the power of subordinate legislation and that
COMELEC Resolution No. 2300 is valid, the COMELEC acted
without jurisdiction or with grave abuse of discretion in
entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b)
of R.A. No. 6735, a petition for initiative on the Constitution must
be signed by at least 12% of the total number of registered voters
of which every legislative district is represented by at least 3% of
the registered voters therein. The Delfin Petition does not contain
signatures of the required number of voters. Delfin himself admits
that he has not yet gathered signatures and that the purpose of
his petition is primarily to obtain assistance in his drive to gather
signatures. Without the required signatures, the petition cannot be
deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative
only after its filing. The petition then is theinitiatory pleading.
Nothing before its filing is cognizable by the COMELEC, sitting en
banc. The only participation of the COMELEC or its personnel
before the filing of such petition are (1) to prescribe the form of
the petition; 63(2) to issue through its Election Records and
Statistics Office a certificate on the total number of registered
voters in each legislative district; 64 (3) to assist, through its
election registrars, in the establishment of signature
stations; 65 and (4) to verify, through its election registrars, the
signatures on the basis of the registry list of voters, voters'
affidavits, and voters' identification cards used in the immediately
preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No.
6735 and COMELEC Resolution No. 2300, it cannot be entertained
or given cognizance of by the COMELEC. The respondent
Commission must have known that the petition does not fall under
any of the actions or proceedings under the COMELEC Rules of
Procedure or under Resolution No. 2300, for which reason it did
not assign to the petition a docket number. Hence, the said
petition was merely entered as UND, meaning, undocketed. That
petition was nothing more than a mere scrap of paper, which
should not have been dignified by the Order of 6 December 1996,
the hearing on 12 December 1996, and the order directing Delfin
and the oppositors to file their memoranda or oppositions. In so
dignifying it, the COMELEC acted without jurisdiction or with grave
abuse of discretion and merely wasted its time, energy, and
resources.

The foregoing considered, further discussion on the issue of

whether the proposal to lift the term limits of elective national and
local officials is an amendment to, and not a revision of, the
Constitution is rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of
any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the
implementation of the system.
We feel, however, that the system of initiative to propose
amendments to the Constitution should no longer be kept in the
cold; it should be given flesh and blood, energy and strength.
Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the
right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of
initiative on amendments to the Constitution, and to have failed to
provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the
Commission on Elections prescribing rules and regulations on the
conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS
the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is
made permanent as against the Commission on Elections, but is
LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.

appropriated by law for the Convention, the Court also ordered

that the Disbursing Officer, Chief Accountant and Auditor of the
Convention be made respondents. After the petition was so
amended, the first appeared thru Senator Emmanuel Pelaez and
the last two thru Delegate Ramon Gonzales. All said respondents,
thru counsel, resist petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of
arguments and even possible confusion, and considering that with
the principal parties being duly represented by able counsel, their
interests would be adequately protected already, the Court had to
limit the number of intervenors from the ranks of the delegates to
the Convention who, more or less, have legal interest in the
success of the respondents, and so, only Delegates Raul S.
Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la
Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna,
Victor Ortega and Juan B. Borra, all distinguished lawyers in their
own right, have been allowed to intervene jointly. The Court feels
that with such an array of brilliant and dedicated counsel, all
interests involved should be duly and amply represented and
protected. At any rate, notwithstanding that their corresponding
motions for leave to intervene or to appear as amicus curiae 1
have been denied, the pleadings filed by the other delegates and
some private parties, the latter in representation of their minor
children allegedly to be affected by the result of this case with the
records and the Court acknowledges that they have not been
without value as materials in the extensive study that has been
undertaken in this case.
The background facts are beyond dispute. The Constitutional
Convention of 1971 came into being by virtue of two resolutions of
the Congress of the Philippines approved in its capacity as a
constituent assembly convened for the purpose of calling a
convention to propose amendments to the Constitution namely,
Resolutions 2 and 4 of the joint sessions of Congress held on
March 16, 1967 and June 17, 1969 respectively. The delegates to
the said Convention were all elected under and by virtue of said
resolutions and the implementing legislation thereof, Republic Act
6132. The pertinent portions of Resolution No 2 read as follows:
SECTION 1. There is hereby called a convention to propose
amendments to the Constitution of the Philippines, to be
composed of two elective Delegates from each representative
district who shall have the same qualifications as those
required of Members of the House of Representatives.
xxx xxx xxx

G.R. No. L-34150 October 16, 1971

ARTURO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT,
THE AUDITOR, and THE DISBURSING OFFICER OF THE 1971
CONSTITUTIONAL CONVENTION, respondents, RAUL S.
MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III,
VICTOR DE LA SERNA, MARCELO B. FERNAN, JOSE Y. FERIA,
LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN
V. BORRA, Intervenors.
BARREDO, J.:
Petition for prohibition principally to restrain the respondent
Commission on Elections "from undertaking to hold a plebiscite on
November 8, 1971," at which the proposed constitutional
amendment "reducing the voting age" in Section 1 of Article V of
the Constitution of the Philippines to eighteen years "shall be,
submitted" for ratification by the people pursuant to Organic
Resolution No. 1 of the Constitutional Convention of 1971, and the
subsequent implementing resolutions, by declaring said
resolutions to be without the force and effect of law in so far as
they direct the holding of such plebiscite and by also declaring the
acts of the respondent Commission (COMELEC) performed and to
be done by it in obedience to the aforesaid Convention resolutions
to be null and void, for being violative of the Constitution of the
Philippines.
As a preliminary step, since the petition named as respondent
only the COMELEC, the Count required that copies thereof be
served on the Solicitor General and the Constitutional Convention,
through its President, for such action as they may deem proper to
take. In due time, respondent COMELEC filed its answer joining
issues with petitioner. To further put things in proper order, and
considering that the fiscal officers of the Convention are
indispensable parties in a proceeding of this nature, since the acts
sought to be enjoined involve the expenditure of funds

SECTION 7. The amendments proposed by the Convention

shall be valid and considered part of the Constitution when
approved by a majority of the votes cast in an election at
which they are submitted to the people for their ratification
pursuant to Article XV of the Constitution.
Resolution No. 4 merely modified the number of delegates to
represent the different cities and provinces fixed originally in
Resolution No 2.
After the election of the delegates held on November 10, 1970,
the Convention held its inaugural session on June 1, 1971. Its
preliminary labors of election of officers, organization of
committees and other preparatory works over, as its first formal
proposal to amend the Constitution, its session which began on
September 27, 1971, or more accurately, at about 3:30 in the
morning of September 28, 1971, the Convention approved
Organic Resolution No. 1 reading thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF
THE CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER
THE VOTING AGE TO 18
BE IT RESOLVED as it is hereby resolved by the 1971
Constitutional Convention:
Section 1. Section One of Article V of the Constitution of the
Philippines is amended to as follows:
Section 1. Suffrage may be exercised by (male) citizens of the
Philippines not otherwise disqualified by law, who are
(twenty-one) EIGHTEEN years or over and are able to read
and write, and who shall have resided in the Philippines for
one year and in the municipality wherein they propose to
vote for at least six months preceding the election.

Section 2. This amendment shall be valid as part of the

Constitution of the Philippines when approved by a majority
of the votes cast in a plebiscite to coincide with the local
elections in November 1971.

afternoon of October 7,1971, enclosing copies of the order,

resolution and letters of transmittal above referred to (Copy
of the report is hereto attached as Annex 8-Memorandum).
RECESS RESOLUTION

Section 3. This partial amendment, which refers only to the

age qualification for the exercise of suffrage shall be without
prejudice to other amendments that will be proposed in the
future by the 1971 Constitutional Convention on other
portions of the amended Section or on other portions of the
entire Constitution.
Section 4. The Convention hereby authorizes the use of the
sum of P75,000.00 from its savings or from its unexpended
funds for the expense of the advanced plebiscite; provided,
however that should there be no savings or unexpended
sums, the Delegates waive P250.00 each or the equivalent of
2-1/2 days per diem.
By a letter dated September 28, 1971, President Diosdado
Macapagal, called upon respondent Comelec "to help the
Convention implement (the above) resolution." The said letter
reads:
September 28, 1971
The Commission on Elections Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed Resolution
No. 1 quoted as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic Act No. 6132
otherwise known as the Constitutional Convention Act of
1971, may we call upon you to help the Convention
implement this resolution:
Sincerely,
(Sgd.) DIOSDADO P. MACAPAGAL
DIOSDADO P. MACAPAGAL
President
On September 30, 1971, COMELEC "RESOLVED to inform the
Constitutional Convention that it will hold the plebiscite on
condition that:
(a) The Constitutional Convention will undertake the printing
of separate official ballots, election returns and tally sheets
for the use of said plebiscite at its expense;
(b) The Constitutional Convention will adopt its own security
measures for the printing and shipment of said ballots and
election forms; and
(c) Said official ballots and election forms will be delivered to
the Commission in time so that they could be distributed at
the same time that the Commission will distribute its official
and sample ballots to be used in the elections on November
8, 1971.
What happened afterwards may best be stated by quoting from
intervenors' Governors' statement of the genesis of the above
proposal:
The President of the Convention also issued an order forming
an Ad Hoc Committee to implement the Resolution.
This Committee issued implementing guidelines which were
approved by the President who then transmitted them to the
Commission on Elections.
The Committee on Plebiscite and Ratification filed a report on
the progress of the implementation of the plebiscite in the

In its plenary session in the evening of October 7, 1971, the

Convention approved a resolution authored by Delegate
Antonio Olmedo of Davao Oriental, calling for a recess of the
Convention from November 1, 1971 to November 9, 1971 to
permit the delegates to campaign for the ratification of
Organic Resolution No. 1. (Copies of the resolution and the
transcript of debate thereon are hereto attached as Annexes
9 and 9-A Memorandum, respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed Resolution No.
24 submitted by Delegate Jose Ozamiz confirming the
authority of the President of the Convention to implement
Organic Resolution No. 1, including the creation of the Ad Hoc
Committee ratifying all acts performed in connection with
said implementation.
Upon these facts, the main thrust of the petition is that Organic
Resolution No. 1 and the other implementing resolutions thereof
subsequently approved by the Convention have no force and
effect as laws in so far as they provide for the holding of a
plebiscite co-incident with the elections of eight senators and all
city, provincial and municipal officials to be held on November 8,
1971, hence all of Comelec's acts in obedience thereof and
tending to carry out the holding of the plebiscite directed by said
resolutions are null and void, on the ground that the calling and
holding of such a plebiscite is, by the Constitution, a power lodged
exclusively in Congress, as a legislative body, and may not be
exercised by the Convention, and that, under Section 1, Article XV
of the Constitution, the proposed amendment in question cannot
be presented to the people for ratification separately from each
and all of the other amendments to be drafted and proposed by
the Convention. On the other hand, respondents and intervenors
posit that the power to provide for, fix the date and lay down the
details of the plebiscite for the ratification of any amendment the
Convention may deem proper to propose is within the authority of
the Convention as a necessary consequence and part of its power
to propose amendments and that this power includes that of
submitting such amendments either individually or jointly at such
time and manner as the Convention may direct in discretion. The
Court's delicate task now is to decide which of these two poses is
really in accord with the letter and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the
question of jurisdiction. They contend that the issue before Us is a
political question and that the Convention being legislative body
of the highest order is sovereign, and as such, its acts impugned
by petitioner are beyond the control of the Congress and the
courts. In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In fact,
respondents Chief Accountant and Auditor of the convention
expressly concede the jurisdiction of this Court in their answer
acknowledging that the issue herein is a justifiable one.
Strangely, intervenors cite in support of this contention portions of
the decision of this Court in the case of Gonzales v. Comelec, 21
SCRA 774, wherein the members of the Court, despite their being
divided in their opinions as to the other matters therein involved,
were precisely unanimous in upholding its jurisdiction. Obviously,
distinguished counsel have either failed to grasp the full impact of
the portions of Our decision they have quoted or would misapply
them by taking them out of context.
There should be no more doubt as to the position of this Court
regarding its jurisdiction vis-a-vis the constitutionality of the acts
of the Congress, acting as a constituent assembly, and, for that
matter, those of a constitutional convention called for the purpose
of proposing amendments to the Constitution, which concededly is
at par with the former. A simple reading of Our ruling in that very
case of Gonzales relied upon by intervenors should dispel any
lingering misgivings as regards that point. Succinctly but
comprehensively, Chief Justice Concepcion held for the Court thus:
.
As early as Angara vs. Electoral Commission (63 Phil. 139,
157), this Court speaking through one of the leading
members of the Constitutional Convention and a respected
professor of Constitutional Law, Dr. Jose P. Laurel declared
that "the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation

of powers between the several departments and among the

integral or constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra), this Court
characterizing the issue submitted thereto as a political one
declined to pass upon the question whether or not a given
number of votes cast in Congress in favor of a proposed
amendment to the Constitution which was being submitted
to the people for ratification satisfied the three-fourths
vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes v. Chief
Accountant of the Senate (81 Phil. 818), Avelino v. Cuenco,
(L-2851, March 4 & 14, 1949), Taada v. Cuenco, (L-10520,
Feb. 28, 1957) and Macias v. Commission on Elections, (L18684, Sept. 14, 1961). In the first we held that the officers
and employees of the Senate Electoral Tribunal are under its
supervision and control, not of that of the Senate President,
as claimed by the latter; in the second, this Court proceeded
to determine the number of Senators necessary
for quorum in the Senate; in the third, we nullified the
election, by Senators belonging to the party having the
largest number of votes in said chamber, purporting to act,
on behalf of the party having the second largest number of
votes therein of two (2) Senators belonging to the first party,
as members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an
act of Congress purporting to apportion the representatives
districts for the House of Representatives, upon the ground
that the apportionment had not been made as may be
possible according to the number of inhabitants of each
province. Thus we rejected the theory, advanced in these
four (4) cases that the issues therein raised were political
questions the determination of which is beyond judicial
review.
Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of
legislative powers to Congress (Section 1, Art. VI, Constitution
of the Philippines). It is part of the inherent powers of the
people as the repository sovereignty in a republican state,
such as ours (Section 1, Art. 11, Constitution of the
Philippines) to make, and, hence, to amend their own
Fundamental Law. Congress may propose amendments to the
Constitution merely because the same explicitly grants such
power. (Section 1, Art. XV, Constitution of the Philippines)
Hence, when exercising the same, it is said that Senators and
members of the House of Representatives act, not as
members of Congress, but as component elements of
aconstituent assembly. When acting as such, the members of
Congress derive their authority from the Constitution, unlike
the people, when performing the same function, (Of
amending the Constitution) for their authority
does not emanate from the Constitution they are the very
source of all powers of government including the Constitution
itself.
Since, when proposing, as a constituent assembly,
amendments to the Constitution, the members of Congress
derive their authority from the Fundamental Law, it follows,
necessarily, that they do not have the final say on whether or
not their acts are within or beyond constitutional limits.
Otherwise, they could brush aside and set the same at
naught, contrary to the basic tenet that ours is a government
of laws, not of men, and to the rigid nature of our
Constitution. Such rigidity is stressed by the fact that the
Constitution expressly confers upon the Supreme Court, (And,
inferentially, to lower courts.) the power to declare a treaty
unconstitutional. (Sec. 2(1), Art. VIII of the Constitution),
despite the eminently political character of treaty-making
power.
In short, the issue whether or not a Resolution of Congress
acting as a constituent assembly violates the Constitution
is essentially justiciable not political, and, hence, subject to
judicial review, and, to the extent that this view may be
inconsistent with the stand taken in Mabanag v. Lopez Vito,
(supra) the latter should be deemed modified accordingly.
The Members of the Court are unanimous on this point.
No one can rightly claim that within the domain of its legitimate
authority, the Convention is not supreme. Nowhere in his petition
and in his oral argument and memoranda does petitioner point
otherwise. Actually, what respondents and intervenors are
seemingly reluctant to admit is that the Constitutional Convention
of 1971, as any other convention of the same nature, owes its
existence and derives all its authority and power from the existing
Constitution of the Philippines. This Convention has not been
called by the people directly as in the case of a revolutionary
convention which drafts the first Constitution of an entirely new

government born of either a war of liberation from a mother

country or of a revolution against an existing government or of a
bloodless seizure of power a la coup d'etat. As to such kind of
conventions, it is absolutely true that the convention is completely
without restrain and omnipotent all wise, and it is as to such
conventions that the remarks of Delegate Manuel Roxas of the
Constitutional Convention of 1934 quoted by Senator Pelaez refer.
No amount of rationalization can belie the fact that the current
convention came into being only because it was called by a
resolution of a joint session of Congress acting as a constituent
assembly by authority of Section 1, Article XV of the present
Constitution which provides:
ARTICLE XV AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a
vote of three-fourths of all the Members of the Senate and of
the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for the
purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at
an election at which the amendments are submitted to the
people for their ratification.
True it is that once convened, this Convention became endowed
with extra ordinary powers generally beyond the control of any
department of the existing government, but the compass of such
powers can be co-extensive only with the purpose for which the
convention was called and as it may propose cannot have any
effect as part of the Constitution until the same are duly ratified
by the people, it necessarily follows that the acts of convention,
its officers and members are not immune from attack on
constitutional grounds. The present Constitution is in full force and
effect in its entirety and in everyone of its parts the existence of
the Convention notwithstanding, and operates even within the
walls of that assembly. While it is indubitable that in its internal
operation and the performance of its task to propose amendments
to the Constitution it is not subject to any degree of restraint or
control by any other authority than itself, it is equally beyond cavil
that neither the Convention nor any of its officers or members can
rightfully deprive any person of life, liberty or property without
due process of law, deny to anyone in this country the equal
protection of the laws or the freedom of speech and of the press in
disregard of the Bill of Rights of the existing Constitution. Nor, for
that matter, can such Convention validly pass any resolution
providing for the taking of private property without just
compensation or for the imposition or exacting of any tax, impost
or assessment, or declare war or call the Congress to a special
session, suspend the privilege of the writ of habeas corpus,
pardon a convict or render judgment in a controversy between
private individuals or between such individuals and the state, in
violation of the distribution of powers in the Constitution.
It being manifest that there are powers which the Convention may
not and cannot validly assert, much less exercise, in the light of
the existing Constitution, the simple question arises, should an act
of the Convention be assailed by a citizen as being among those
not granted to or inherent in it, according to the existing
Constitution, who can decide whether such a contention is correct
or not? It is of the very essence of the rule of law that somehow
somewhere the Power and duty to resolve such a grave
constitutional question must be lodged on some authority, or we
would have to confess that the integrated system of government
established by our founding fathers contains a wide vacuum no
intelligent man could ignore, which is naturally unworthy of their
learning, experience and craftsmanship in constitution-making.
We need not go far in search for the answer to the query We have
posed. The very decision of Chief Justice Concepcion in Gonzales,
so much invoked by intervenors, reiterates and reinforces the
irrefutable logic and wealth of principle in the opinion written for a
unanimous Court by Justice Laurel in Angara vs. Electoral
Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft
strokes and in bold lines, allotment of power to the executive,
the legislative and the judicial departments of the
government. The overlapping and interlacing of functions and
duties between the several departments, however,
sometimes makes it hard to say where the one leaves off and
the other begins. In times of social disquietude or political
excitement, the great landmark of the Constitution are apt to
be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper
allocation of powers between the several departments and
among the integral or constituent units thereof.

As any human production our Constitution is of course lacking

perfection and perfectibility, but as much as it was within the
power of our people, acting through their delegates to so
provide, that instrument which is the expression of their
sovereignty however limited, has established a republican
government intended to operate and function as a
harmonious whole, under a system of check and balances
and subject to specific limitations and restrictions provided in
the said instrument. The Constitution sets forth in no
uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to
direct the course of government along constitutional
channels, for then the distribution of powers would be mere
verbiage, the bill of rights mere expressions of sentiment and
the principles of good government mere political apothegms.
Certainly the limitations and restrictions embodied in our
Constitution are real as they should be in any living
Constitution. In the United States where no express
constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to
speak of its historical origin and development there, has been
set at rest by popular acquiescence for a period of more than
one and half centuries. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2
of Article VIII of our Constitution.
The Constitution is a definition of the powers or government.
Who is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it
does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth
all that is involved in what is termed "judicial supremacy"
which properly is the power of judicial review under the
Constitution. Even then, this power of judicial review is
limited to actual cases and controversies to be exercised
after full opportunity of argument by the parties, and limited
further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to strike
conclusions unrelated to actualities. Narrowed as its functions
is in this manner the judiciary does not pass upon questions
of wisdom, justice or expediency of legislation. More than
that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the
people as expressed through their representatives in the
executive and legislative departments of the government.
But much as we might postulate on the internal checks of
power provided in our Constitution, it ought not the less to be
remembered that, in the language of James Madison, the
system itself is not "the chief palladium of constitutional
liberty ... the people who are authors of this blessing must
also be its guardians ... their eyes must be ever ready to
mark, their voices to pronounce ... aggression on the
authority of their Constitution." In the last and ultimate
analysis then, must the success of our government in the
unfolding years to come be tested in the crucible of Filipino
minds and hearts than in consultation rooms and court
chambers.
In the case at bar, the National Assembly has by resolution
(No. 8) of December 3, 1935, confirmed the election of the
herein petitioner to the said body. On the other hand, the
Electoral Commission has by resolution adopted on
December 9, 1935, fixed said date as the last day for the
filing of protests against the election, returns and
qualifications of members of the National Assembly;
notwithstanding the previous confirmations made by the
National Assembly as aforesaid. If, as contended by the
petitioner, the resolution of the National Assembly has the
effect of cutting off the power of the Electoral Commission to
entertain protests against the election, returns and
qualifications of members of the National Assembly,
submitted after December 3, 1935 then the resolution of the
Electoral Commission of December 9, 1935, is mere
surplusage and had no effect. But, if, as contended by the
respondents, the Electoral Commission has the sole power of
regulating its proceedings to the exclusion of the National

Assembly, then the resolution of December 9, 1935, by which

the Electoral Commission fixed said date as the last day for
filing protests against the election, returns and qualifications
of members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it
does a conflict of a grave constitutional nature between the
National Assembly on the one hand and the Electoral
Commission on the other. From the very nature of the
republican government established in our country in the light
of American experience and of our own, upon the judicial
department is thrown the solemn and inescapable obligation
of interpreting the Constitution and defining constitutional
boundaries. The Electoral Commission as we shall have
occasion to refer hereafter, is a constitutional organ, created
for a specific purpose, namely, to determine all contests
relating to the election, returns and qualifications of the
members of the National Assembly. Although the Electoral
Commission may not be interfered with, when and while
acting within the limits of its authority, it does not follow that
it is beyond the reach of the constitutional mechanism
adopted by the people and that it is not subject to
constitutional restriction. The Electoral Commission is not a
separate department of the government, and even if it were,
conflicting claims of authority under the fundamental law
between departmental powers and agencies of the
government are necessarily determined by the judiciary in
justiciable and appropriate cases. Discarding the English type
and other European types of constitutional government, the
framers of our Constitution adopted the American type where
the written constitution is interpreted and given effect by the
judicial department. In some countries which have declined
to follow the American example, provisions have been
inserted in their constitutions prohibiting the courts from
exercising the power to interpret the fundamental law. This is
taken as a recognition of what otherwise would be the rule
that in the absence of direct prohibition, courts are bound to
assume what is logically their function. For instance, the
Constitution of Poland of 1921 expressly provides that courts
shall have no power to examine the validity of statutes (art.
81, Chap. IV). The former Austrian Constitution contained a
similar declaration. In countries whose constitution are silent
in this respect, courts have assumed this power. This is true
in Norway, Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to
Constitutional Charter of the Czechoslavak, Republic,
February 29, 1920) and Spain (arts. 121-123, Title IX,
Constitution of the Republic of 1931) especial constitutional
courts are established to pass upon the validity of ordinary
laws. In our case, the nature of the present controversy
shows the necessity of a final constitutional arbiter to
determine the conflict of authority between two agencies
created by the Constitution. Were we to decline to take
cognizance of the controversy, who will determine the
conflict? And if the conflict were left undecided and
undetermined, would not a void be thus created in our
constitutional system which may in the long run prove
destructive of the entire framework? To ask these questions is
to answer them. Natura vacuum abhorret, so must we avoid
exhaustion in our constitutional system. Upon principle,
reason, and authority, we are clearly of the opinion that upon
the admitted facts of the present case, this court has
jurisdiction over the Electoral Commission and the subject
matter of the present controversy for the purpose of
determining the character, scope and extent of the
constitutional grant to the Electoral Commission as "the sole
judge of all contests relating to the election, returns and
qualifications of the members of the National Assembly." .
As the Chief Justice has made it clear in Gonzales, like Justice
Laurel did in Angara, these postulates just quoted do not apply
only to conflicts of authority between the three existing regular
departments of the government but to all such conflicts between
and among these departments, or, between any of them, on the
one hand, and any other constitutionally created independent
body, like the electoral tribunals in Congress, the Comelec and the
Constituent assemblies constituted by the House of Congress, on
the other. We see no reason of logic or principle whatsoever, and
none has been convincingly shown to Us by any of the
respondents and intervenors, why the same ruling should not
apply to the present Convention, even if it is an assembly of
delegate elected directly by the people, since at best, as already
demonstrated, it has been convened by authority of and under the
terms of the present Constitution..
Accordingly, We are left with no alternative but to uphold the
jurisdiction of the Court over the present case. It goes without
saying that We do this not because the Court is superior to the
Convention or that the Convention is subject to the control of the
Court, but simply because both the Convention and the Court are

subject to the Constitution and the rule of law, and "upon

principle, reason and authority," per Justice Laurel, supra, it is
within the power as it is the solemn duty of the Court, under the
existing Constitution to resolve the issues in which petitioner,
respondents and intervenors have joined in this case.

Court the sacred duty to give meaning and vigor to the

Constitution, by interpreting and construing its provisions in
appropriate cases with the proper parties, and by striking down
any act violative thereof. Here, as in all other cases, We are
resolved to discharge that duty.

II

During these twice when most anyone feels very strongly the
urgent need for constitutional reforms, to the point of being
convinced that meaningful change is the only alternative to a
violent revolution, this Court would be the last to put any
obstruction or impediment to the work of the Constitutional
Convention. If there are respectable sectors opining that it has not
been called to supplant the existing Constitution in its entirety,
since its enabling provision, Article XV, from which the Convention
itself draws life expressly speaks only of amendments which shall
form part of it, which opinion is not without persuasive force both
in principle and in logic, the seemingly prevailing view is that only
the collective judgment of its members as to what is warranted by
the present condition of things, as they see it, can limit the extent
of the constitutional innovations the Convention may propose,
hence the complete substitution of the existing constitution is not
beyond the ambit of the Convention's authority. Desirable as it
may be to resolve, this grave divergence of views, the Court does
not consider this case to be properly the one in which it should
discharge its constitutional duty in such premises. The issues
raised by petitioner, even those among them in which
respondents and intervenors have joined in an apparent wish to
have them squarely passed upon by the Court do not necessarily
impose upon Us the imperative obligation to express Our views
thereon. The Court considers it to be of the utmost importance
that the Convention should be untrammelled and unrestrained in
the performance of its constitutionally as signed mission in the
manner and form it may conceive best, and so the Court may step
in to clear up doubts as to the boundaries set down by the
Constitution only when and to the specific extent only that it
would be necessary to do so to avoid a constitutional crisis or a
clearly demonstrable violation of the existing Charter. Withal, it is
a very familiar principle of constitutional law that constitutional
questions are to be resolved by the Supreme Court only when
there is no alternative but to do it, and this rule is founded
precisely on the principle of respect that the Court must accord to
the acts of the other coordinate departments of the government,
and certainly, the Constitutional Convention stands almost in a
unique footing in that regard.

The issue of jurisdiction thus resolved, We come to the crux of the

petition. Is it within the powers of the Constitutional Convention of
1971 to order, on its own fiat, the holding of a plebiscite for the
ratification of the proposed amendment reducing to eighteen
years the age for the exercise of suffrage under Section 1 of
Article V of the Constitution proposed in the Convention's Organic
Resolution No. 1 in the manner and form provided for in said
resolution and the subsequent implementing acts and resolution
of the Convention?
At the threshold, the environmental circumstances of this case
demand the most accurate and unequivocal statement of the real
issue which the Court is called upon to resolve. Petitioner has very
clearly stated that he is not against the constitutional extension of
the right of suffrage to the eighteen-year-olds, as a matter of fact,
he has advocated or sponsored in Congress such a proposal, and
that, in truth, the herein petition is not intended by him to prevent
that the proposed amendment here involved be submitted to the
people for ratification, his only purpose in filing the petition being
to comply with his sworn duty to prevent, Whenever he can, any
violation of the Constitution of the Philippines even if it is
committed in the course of or in connection with the most
laudable undertaking. Indeed, as the Court sees it, the specific
question raised in this case is limited solely and only to the point
of whether or not it is within the power of the Convention to call
for a plebiscite for the ratification by the people of the
constitutional amendment proposed in the abovequoted Organic
Resolution No. 1, in the manner and form provided in said
resolution as well as in the subject question implementing actions
and resolution of the Convention and its officers, at this juncture
of its proceedings, when as it is a matter of common knowledge
and judicial notice, it is not set to adjourn sine die, and is, in fact,
still in the preliminary stages of considering other reforms or
amendments affecting other parts of the existing Constitution;
and, indeed, Organic Resolution No. 1 itself expressly provides,
that the amendment therein proposed "shall be without prejudice
to other amendments that will be proposed in the future by the
1971 Constitutional Convention on other portions of the amended
section or on other portions of the entire Constitution." In other
words, nothing that the Court may say or do, in this case should
be understood as reflecting, in any degree or means the individual
or collective stand of the members of the Court on the
fundamental issue of whether or not the eighteen-year-olds should
be allowed to vote, simply because that issue is not before Us
now. There should be no doubt in the mind of anyone that, once
the Court finds it constitutionally permissible, it will not hesitate to
do its part so that the said proposed amendment may be
presented to the people for their approval or rejection.
Withal, the Court rests securely in the conviction that the fire and
enthusiasm of the youth have not blinded them to the absolute
necessity, under the fundamental principles of democracy to
which the Filipino people is committed, of adhering always to the
rule of law. Surely, their idealism, sincerity and purity of purpose
cannot permit any other line of conduct or approach in respect of
the problem before Us. The Constitutional Convention of 1971
itself was born, in a great measure, because of the pressure
brought to bear upon the Congress of the Philippines by various
elements of the people, the youth in particular, in their incessant
search for a peaceful and orderly means of bringing about
meaningful changes in the structure and bases of the existing
social and governmental institutions, including the provisions of
the fundamental law related to the well-being and economic
security of the underprivileged classes of our people as well as
those concerning the preservation and protection of our natural
resources and the national patrimony, as an alternative to violent
and chaotic ways of achieving such lofty ideals. In brief, leaving
aside the excesses of enthusiasm which at times have justifiably
or unjustifiably marred the demonstrations in the streets, plazas
and campuses, the youth of the Philippines, in general, like the
rest of the people, do not want confusion and disorder, anarchy
and violence; what they really want are law and order, peace and
orderliness, even in the pursuit of what they strongly and urgently
feel must be done to change the present order of things in this
Republic of ours. It would be tragic and contrary to the plain
compulsion of these perspectives, if the Court were to allow itself
in deciding this case to be carried astray by considerations other
than the imperatives of the rule of law and of the applicable
provisions of the Constitution. Needless to say, in a larger
measure than when it binds other departments of the government
or any other official or entity, the Constitution imposes upon the

In our discussion of the issue of jurisdiction, We have already

made it clear that the Convention came into being by a call of a
joint session of Congress pursuant to Section I of Article XV of the
Constitution, already quoted earlier in this opinion. We reiterate
also that as to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to
the Constitution, the Convention and its officers and members are
all subject to all the provisions of the existing Constitution. Now
We hold that even as to its latter task of proposing amendments
to the Constitution, it is subject to the provisions of Section I of
Article XV. This must be so, because it is plain to Us that the
framers of the Constitution took care that the process of
amending the same should not be undertaken with the same ease
and facility in changing an ordinary legislation. Constitution
making is the most valued power, second to none, of the people in
a constitutional democracy such as the one our founding fathers
have chosen for this nation, and which we of the succeeding
generations generally cherish. And because the Constitution
affects the lives, fortunes, future and every other conceivable
aspect of the lives of all the people within the country and those
subject to its sovereignty, every degree of care is taken in
preparing and drafting it. A constitution worthy of the people for
which it is intended must not be prepared in haste without
adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less
importance than the whole Constitution itself, and perforce must
be conceived and prepared with as much care and deliberation.
From the very nature of things, the drafters of an original
constitution, as already observed earlier, operate without any
limitations, restraints or inhibitions save those that they may
impose upon themselves. This is not necessarily true of
subsequent conventions called to amend the original constitution.
Generally, the framers of the latter see to it that their handiwork is
not lightly treated and as easily mutilated or changed, not only for
reasons purely personal but more importantly, because written
constitutions are supposed to be designed so as to last for some
time, if not for ages, or for, at least, as long as they can be
adopted to the needs and exigencies of the people, hence, they
must be insulated against precipitate and hasty actions motivated
by more or less passing political moods or fancies. Thus, as a rule,
the original constitutions carry with them limitations and
conditions, more or less stringent, made so by the people
themselves, in regard to the process of their amendment. And
when such limitations or conditions are so incorporated in the
original constitution, it does not lie in the delegates of any

subsequent convention to claim that they may ignore and

disregard such conditions because they are as powerful and
omnipotent as their original counterparts.
Nothing of what is here said is to be understood as curtailing in
any degree the number and nature and the scope and extent of
the amendments the Convention may deem proper to propose.
Nor does the Court propose to pass on the issue extensively and
brilliantly discussed by the parties as to whether or not the power
or duty to call a plebiscite for the ratification of the amendments
to be proposed by the Convention is exclusively legislative and as
such may be exercised only by the Congress or whether the said
power can be exercised concurrently by the Convention with the
Congress. In the view the Court takes of present case, it does not
perceive absolute necessity to resolve that question, grave and
important as it may be. Truth to tell, the lack of unanimity or even
of a consensus among the members of the Court in respect to this
issue creates the need for more study and deliberation, and as
time is of the essence in this case, for obvious reasons, November
8, 1971, the date set by the Convention for the plebiscite it is
calling, being nigh, We will refrain from making any
pronouncement or expressing Our views on this question until a
more appropriate case comes to Us. After all, the basis of this
decision is as important and decisive as any can be.
The ultimate question, therefore boils down to this: Is there any
limitation or condition in Section 1 of Article XV of the Constitution
which is violated by the act of the Convention of calling for a
plebiscite on the sole amendment contained in Organic Resolution
No. 1? The Court holds that there is, and it is the condition and
limitation that all the amendments to be proposed by the same
Convention must be submitted to the people in a single "election"
or plebiscite. It being indisputable that the amendment now
proposed to be submitted to a plebiscite is only the first
amendment the Convention propose We hold that the plebiscite
being called for the purpose of submitting the same for ratification
of the people on November 8, 1971 is not authorized by Section 1
of Article XV of the Constitution, hence all acts of the Convention
and the respondent Comelec in that direction are null and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is
sufficiently clear. lt says distinctly that either Congress sitting as a
constituent assembly or a convention called for the purpose "may
propose amendments to this Constitution," thus placing no limit as
to the number of amendments that Congress or the Convention
may propose. The same provision also as definitely provides that
"such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their
ratification," thus leaving no room for doubt as to how many
"elections" or plebiscites may be held to ratify any amendment or
amendments proposed by the same constituent assembly of
Congress or convention, and the provision unequivocably says "an
election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom
and appropriateness of this provision. As already stated,
amending the Constitution is as serious and important an
undertaking as constitution making itself. Indeed, any amendment
of the Constitution is as important as the whole of it if only
because the Constitution has to be an integrated and harmonious
instrument, if it is to be viable as the framework of the
government it establishes, on the one hand, and adequately
formidable and reliable as the succinct but comprehensive
articulation of the rights, liberties, ideology, social ideals, and
national and nationalistic policies and aspirations of the people, on
the other. lt is inconceivable how a constitution worthy of any
country or people can have any part which is out of tune with its
other parts..
A constitution is the work of the people thru its drafters assembled
by them for the purpose. Once the original constitution is
approved, the part that the people play in its amendment
becomes harder, for when a whole constitution is submitted to
them, more or less they can assumed its harmony as an
integrated whole, and they can either accept or reject it in its
entirety. At the very least, they can examine it before casting their
vote and determine for themselves from a study of the whole
document the merits and demerits of all or any of its parts and of
the document as a whole. And so also, when an amendment is
submitted to them that is to form part of the existing constitution,
in like fashion they can study with deliberation the proposed
amendment in relation to the whole existing constitution and or
any of its parts and thereby arrive at an intelligent judgment as to
its acceptability.

This cannot happen in the case of the amendment in question.

Prescinding already from the fact that under Section 3 of the
questioned resolution, it is evident that no fixed frame of
reference is provided the voter, as to what finally will be
concomitant qualifications that will be required by the final draft of
the constitution to be formulated by the Convention of a voter to
be able to enjoy the right of suffrage, there are other
considerations which make it impossible to vote intelligently on
the proposed amendment, although it may already be observed
that under Section 3, if a voter would favor the reduction of the
voting age to eighteen under conditions he feels are needed
under the circumstances, and he does not see those conditions in
the ballot nor is there any possible indication whether they will
ever be or not, because Congress has reserved those for future
action, what kind of judgment can he render on the proposal?
But the situation actually before Us is even worse. No one knows
what changes in the fundamental principles of the constitution the
Convention will be minded to approve. To be more specific, we do
not have any means of foreseeing whether the right to vote would
be of any significant value at all. Who can say whether or not later
on the Convention may decide to provide for varying types of
voters for each level of the political units it may divide the country
into. The root of the difficulty in other words, lies in that the
Convention is precisely on the verge of introducing substantial
changes, if not radical ones, in almost every part and aspect of
the existing social and political order enshrined in the present
Constitution. How can a voter in the proposed plebiscite
intelligently determine the effect of the reduction of the voting
age upon the different institutions which the Convention may
establish and of which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for
the ratification of an amendment to the Constitution may be
validly held, it must provide the voter not only sufficient time but
ample basis for an intelligent appraisal of the nature of the
amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole. In the
context of the present state of things, where the Convention has
hardly started considering the merits of hundreds, if not
thousands, of proposals to amend the existing Constitution, to
present to the people any single proposal or a few of them cannot
comply with this requirement. We are of the opinion that the
present Constitution does not contemplate in Section 1 of Article
XV a plebiscite or "election" wherein the people are in the dark as
to frame of reference they can base their judgment on. We reject
the rationalization that the present Constitution is a possible
frame of reference, for the simple reason that intervenors
themselves are stating that the sole purpose of the proposed
amendment is to enable the eighteen year olds to take part in the
election for the ratification of the Constitution to be drafted by the
Convention. In brief, under the proposed plebiscite, there can be,
in the language of Justice Sanchez, speaking for the six members
of the Court in Gonzales, supra, "no proper submission".
III
The Court has no desire at all to hamper and hamstring the noble
work of the Constitutional Convention. Much less does the Court
want to pass judgment on the merits of the proposal to allow
these eighteen years old to vote. But like the Convention, the
Court has its own duties to the people under the Constitution
which is to decide in appropriate cases with appropriate parties
Whether or not the mandates of the fundamental law are being
complied with. In the best light God has given Us, we are of the
conviction that in providing for the questioned plebiscite before it
has finished, and separately from, the whole draft of the
constitution it has been called to formulate, the Convention's
Organic Resolution No. 1 and all subsequent acts of the
Convention implementing the same violate the condition in
Section 1, Article XV that there should only be one "election" or
plebiscite for the ratification of all the amendments the
Convention may propose. We are not denying any right of the
people to vote on the proposed amendment; We are only holding
that under Section 1, Article XV of the Constitution, the same
should be submitted to them not separately from but together
with all the other amendments to be proposed by this present
Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted.
Organic Resolution No. 1 of the Constitutional Convention of 1971
and the implementing acts and resolutions of the Convention,
insofar as they provide for the holding of a plebiscite on November
8, 1971, as well as the resolution of the respondent Comelec
complying therewith (RR Resolution No. 695) are hereby declared
null and void. The respondents Comelec, Disbursing Officer, Chief
Accountant and Auditor of the Constitutional Convention are
hereby enjoined from taking any action in compliance with the

said organic resolution. In view of the peculiar circumstances of

this case, the Court declares this decision immediately executory.
No costs.