CONSTITUTIONAL LAW 2, PHILIPPINE CONSTITUTION
of Salta because both law and rule, in restricting to judges the authority to
G.R. No. L-34285 March 8, 1989
B. JOSE CASTILLO, petitioner,
vs.
HON. ONOFRE A. VILLALUZ, Judge, Circuit Criminal Court, 7th Judicial
District, RENATO MONTES and JOSE DE SILVA, respondents.
Fidel Manalo and Juan C. Gatmaitan for petitioner.
NARVASA, J.:
Judges of Regional Trial Courts (formerly Courts of First Instance) no longer
have authority to conduct preliminary investigations. That authority, at one time
reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of Court
of 1964, 1 was removed from them by the 1985 Rules on Criminal Procedure,
effective on January 1, 1985, 2 which deleted all provisions granting that power
to said Judges. We had occasion to point this out in Salta v. Court of
Appeals, 143 SCRA 228, and to stress as well certain other basic propositions,
namely: (1) that the conduct of a preliminary investigation is "not a judicial
function ... (but) part of the prosecution's job, a function of the executive," (2)
that wherever "there are enough fiscals or prosecutors to conduct preliminary
investigations, courts are counseled to leave this job which is essentially
executive to them," and the fact "that a certain power is granted does not
necessarily mean that it should be indiscriminately exercised."
The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared
effective on October 1, 1988 3 did not restore that authority to Judges of
Regional Trial Courts; said amendments did not in fact deal at all with the
officers or courts having authority to conduct preliminary investigations.
This is not to say, however, that somewhere along the line RTC Judges also
lost the power to make a preliminary examination for the purpose of
determining whether probable cause exists to justify the issuance of a warrant
of arrest (or search warrant). Such a power indeed, it is as much a duty as
it is a power has been and remains vested in every judge by the provision
in the Bill of Rights in the 1935, the 1973 and the present (1987) Constitutions
securing the people against unreasonable searches and seizures, 4 thereby
placing it beyond the competence of mere Court rule or statute to revoke. The
distinction must, therefore, be made clear while an RTC Judge may no longer
conduct preliminary investigations to ascertain whether there is sufficient
ground for the filing of a criminal complaint or information, 5 he retains the
authority, when such a pleading is filed with his court, to determine whether
there is probable cause justifying the issuance of a warrant of arrest. 6 It might
be added that this distinction accords, rather than conflicts, with the rationale
order arrest, recognize that function to be judicial in nature. 7
The proceedings at bar have reference to the law in 1971, at which time a
preliminary investigation (now in question) was conducted by respondent
Judge of the Circuit Criminal Court. 8 He did so with respect to a complaint
dated July 9, 1971 (and Joint Affidavit dated July 21, 1971) filed directly with
his Court by Renato Montes and Jose de Silva against Manuel Laconico The
complaint charged the latter with estafa in the amount of P1,000.00. The
investigation culminated in the issuance by respondent Judge of an Order on
July 28, 1971 9 containing the following dispositive portion:
WHEREFORE, there being a preliminary examination and
investigation conducted by the Court and considering that the
respondent was given a chance to defend himself, let a warrant be
issued for his apprehension. The respondent is hereby ordered to post
a bond in the amount of P3,000.00 for his provisional release.
Pursuant to Section 6, Rule 135 of the New Rules of Court, in relation
to Section 13, Rule 112 thereto, the Provincial Fiscal of Rizal is hereby
ordered to file the corresponding information against the respondent
before the court of competent jurisdiction within TWENTY-FOUR (24)
hours from receipt hereof.
SO ORDERED.
Notice of the Order was served on the Provincial Fiscal of Rizal, herein
petitioner, on July 29, 1971, but he failed to file the information required within
the time appointed, or at any time thereafter. Consequently, on October 1,
1971, he was directed by His Honor to explain within ten (10) days "why he
should not be punished for contempt of court for delaying the speedy
administration of justice for disobeying a lawful order of the Court." 10 The
Fiscal filed a motion for reconsideration, 11 but this was denied, by Order dated
October 19, 1971. 12 Hence, this petition forcertiorari and prohibition was
presented by petitioner Fiscal, seeking annulment of the aforesaid orders.
Petitioner submits that-
1) His Honor had no jurisdiction to conduct preliminary investigations,
because the law creating Circuit Criminal Courts, R.A. No. 5179,
conferred on said courts only the power to try and decide, concurrently
with the regular courts of first instance, certain specific criminal cases,
but not the power to conduct preliminary investigations;
 2) a preliminary investigation is not a part of a trial or the rendition of
a decision; it is a function which may very well be left to the public
prosecutors as its discharge would unduly burden judges;
3) even assuming power in the respondent to conduct preliminary
investigations, the power does not include the compulsion of a
provincial fiscal, under sanction of contempt, to file an information in
court without conducting his own preliminary investigation; the
conduct thereof is a primary duty of his; as the official charged with the
responsibility of instituting and prosecuting criminal cases in court, the
determination of the sufficiency of the evidence to warrant such
institution and prosecution is made to rest by law upon his sound
discretion.
During the time that it existed, 13 the Circuit Criminal Court had the same power
as a Court of First Instance to conduct preliminary investigations of offenses
cognizable by it. So we have ruled in two (2) cases: Collector of Customs v.
Villaluz,71 SCRA 356, 14 and de Guzman v. Villaluz, 117 SCRA 182. 15
Now, His Honor was evidently of the view that his determination of the
existence of probable cause, founded on the results of his own preliminary
investigation, was the last word on the matter, and the Provincial Fiscal had
no option except to draw up and file the information on the basis of said
preliminary investigation. This is why respondent Judge gave petitioner Fiscal
only twenty-four (24) hours "to file the corresponding information."
The Judge is mistaken. It is the fiscal who is given by law "direction and control"
of all criminal actions. 16 It is he who initiates all prosecutions in the name of
the People of the Philippines, by information or complaint, against all persons
who appear to be responsible for the offense involved. 17 It is he (or other public
prosecutor), therefore, who is primarily responsible for ascertaining through a
preliminary inquiry or proceeding "whether there is reasonable ground to
believe that an offense has been committed and the accused is probably guilty
thereof." 18 That function, to repeat, is not judicial but executive. When a
preliminary investigation is conducted by a judge, the judge performs a non-
judicial function, as an exception to his usual judicial duties. The assignment
of that function to judges of inferior courts and to a very limited extent to courts
of first instance was dictated by "necessity and practical considerations," and
the consequent policy, as we said inSalta, was that "wherever there were
enough fiscals or prosecutors to conduct preliminary investigations, courts
were to leave that job which is essentially executive to them." It follows that
the conclusions derived by a judge from his own investigation cannot be
superior to and conclusively binding on the fiscal or public prosecutor, in whom
that function is principally and more logically lodged. These considerations
argue against giving the term "refer" used in Section 13 of the former Rule
112-which provided that if the judge, after conducting a preliminary
investigation finds probable cause against a defendant," ... be shall issue a
warrant for his arrest, and thereafter refer the case to the fiscal for the filing of
the corresponding information"-the effect of imposing upon the fiscal the
mandatory duty to file an information merely upon such reference being made;
and this, even without regard to the fact that in its ordinary sense, the word
"refer" conveys no such import nor connotes any compulsion. And it was no
doubt on account of these obvious considerations that, as Salta further
observes, Section 37 of Batas Pambansa Blg. 129 reiterated" the removal from
Judges of Metropolitan Trial Courts in the National Capital Region of the
authority to conduct preliminary investigations" and "Section 2 of Rule 112 of
the 1985 Rules on Criminal Procedure no longer authorizes Regional Trial
Judges to conduct preliminary investigations." It may not be amiss to point out,
in this connection, that the 1988 Amendments to the 1985 Rules on Criminal
Procedure (Sec. 5, Rule 112) explicitly provide inter alia that "(s)hould the
provincial or city fiscal disagree with the findings of the investigating judge on
the existence of probable cause, the fiscal's ruling shall prevail." 19
Be it noted, however, that once the fiscal files an information with the Court
and the Court thereby acquires jurisdiction over the case, the case may not be
dismissed at the fiscal's instance except only by consent of the Court, which
may grant or withhold it in its discretion. 20
It was therefore grave abuse of discretion amounting to lack of jurisdiction on
His Honor's part to seek to foreclose the petitioner fiscal's prerogative to
conduct his own preliminary investigation to determine for himself the
existence or nonexistence of probable cause, and to require him to show
cause for not filing the information within twenty-four (24) hours, on the sole
basis of the Judge's conclusions. The fiscal was not bound to a blind, uncritical
and unavoidable acceptance of those conclusions. He had the duty to satisfy
himself of the existence of probable cause, and could not shirk or be made to
evade it by an unreasoning and indiscriminate reliance on the judge's
investigation.
Since the controversy at bar arose, many years have passed during which
Circuit Criminal Courts were abolished, as already stated, 21 the petitioner
Fiscal's public service was ended by compulsory retirement, and the
respondent's stint as Judge, ended by his promotion to a higher court. It is
time, too, that this case is ended.
WHEREFORE, the challenged Orders are hereby annulled and set aside. This
resolution is immediately executory. No costs.
Gancayco, Grio-Aquino and Medialdea, JJ., concur.
Separate Opinions
CRUZ, J., concurring:
I concur as long it is understood that the fiscal prevails over the judge only in
the determination of the existence of a prima facie case to justify the filing of a
complaint or information. This task is concededly executive. But the
determination of probable cause to justify the issuance of a search warrant or
a warrant of arrest is the constitutional prerogative of the judge and may not
be withdrawn from him or even only limited by statute or the Rules of Court.
This task is undoubtedly judicial. The findings of the fiscal in the preliminary
investigation do not control or foreclose the exercise of the power conferred
personally on the judge under Section 2 of the Bill of Rights. That power is his
alone.
G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL, respondents.
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of
rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos, 1 is in oked by
petitioner in its bid to acquire 51% of the shares of the Manila Hotel
Corporation (MHC) which owns the historic Manila Hotel. Opposing,
respondents maintain that the provision is not self-executing but requires an
implementing legislation for its enforcement. Corollarily, they ask whether the
51% shares form part of the national economy and patrimony covered by the
protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance
System (GSIS), pursuant to the privatization program of the Philippine
Government under Proclamation No. 50 dated 8 December 1986, decided to
sell through public bidding 30% to 51% of the issued and outstanding shares
of respondent MHC. The winning bidder, or the eventual "strategic partner," is
to provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the
profitability and performance of the Manila Hotel. 2 In a close bidding held on
18 September 1995 only two (2) bidders participated: petitioner Manila Prince
Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC
or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian
firm, with ITT-Sheraton as its hotel operator, which bid for the same number of
shares at P44.00 per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set
forth below by October 23, 1995 (reset to November 3, 1995)
or the Highest Bidder will lose the right to purchase the Block
of Shares and GSIS will instead offer the Block of Shares to
the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the
GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila
Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not
later than October 23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP
(Committee on Privatization)/OGCC (Office of the
Government Corporate Counsel) are obtained. 3
Pending the declaration of Renong Berhad as the winning bidder/strategic
partner and the execution of the necessary contracts, petitioner in a letter to
respondent GSIS dated 28 September 1995 matched the bid price of P44.00
per share tendered by Renong Berhad. 4 In a subsequent letter dated 10
October 1995 petitioner sent a manager's check issued by Philtrust Bank for
Thirty-three Million Pesos (P33.000.000.00) as Bid Security to match the bid
of the Malaysian Group, Messrs. Renong Berhad . . . 5 which respondent GSIS
refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of the
MHC may be hastened by respondent GSIS and consummated with Renong
Berhad, petitioner came to this Court on prohibition and mandamus. On 18
October 1995 the Court issued a temporary restraining order enjoining
respondents from perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En
Banc after it was referred to it by the First Division. The case was then set for
oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin
G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the
Filipino nation and has practically become a historical monument which
reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of
an earlier generation of Filipinos who believed in the nobility and sacredness
of independence and its power and capacity to release the full potential of the
Filipino people. To all intents and purposes, it has become a part of the
national patrimony. 6 Petitioner also argues that since 51% of the shares of the
MHC carries with it the ownership of the business of the hotel which is owned
by respondent GSIS, a government-owned and controlled corporation, the
hotel business of respondent GSIS being a part of the tourism industry is
unquestionably a part of the national economy. Thus, any transaction involving
51% of the shares of stock of the MHC is clearly covered by the term national
economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. 7
It is also the thesis of petitioner that since Manila Hotel is part of the national
patrimony and its business also unquestionably part of the national economy
petitioner should be preferred after it has matched the bid offer of the
Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this
to the other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of price
per share. 8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII,
of the 1987 Constitution is merely a statement of principle and policy since it
is not a self-executing provision and requires implementing legislation(s) . . .
Thus, for the said provision to Operate, there must be existing laws "to lay
down conditions under which business may be done." 9
Second, granting that this provision is self-executing, Manila Hotel does not
fall under the term national patrimony which only refers to lands of the public
domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna and all
marine wealth in its territorial sea, and exclusive marine zone as cited in the
first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According
to respondents, while petitioner speaks of the guests who have slept in the
hotel and the events that have transpired therein which make the hotel historic,
these alone do not make the hotel fall under the patrimonyof the nation. What
is more, the mandate of the Constitution is addressed to the State, not to
respondent GSIS which possesses a personality of its own separate and
distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is
only 51% of the outstanding shares of the corporation, not the hotel building
nor the land upon which the building stands. Certainly, 51% of the equity of
the MHC cannot be considered part of the national patrimony. Moreover, if the
disposition of the shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning and not after it
had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules
which provides that if for any reason, the Highest Bidder cannot be awarded
the Block of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified Bidders are willing to
match the highest bid in terms of price per share, is misplaced. Respondents
postulate that the privilege of submitting a matching bid has not yet arisen
since it only takes place if for any reason, the Highest Bidder cannot be
awarded the Block of Shares. Thus the submission by petitioner of a matching
bid is premature since Renong Berhad could still very well be awarded the
block of shares and the condition giving rise to the exercise of the privilege to
submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should
fail since respondent GSIS did not exercise its discretion in a capricious,
whimsical manner, and if ever it did abuse its discretion it was not so patent
and gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law. Similarly, the petition for mandamus should
fail as petitioner has no clear legal right to what it demands and respondents
do not have an imperative duty to perform the act required of them by
petitioner.
We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious, absolute
and unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation. 10 It prescribes
the permanent framework of a system of government, assigns to the different
departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in
other words is that it is a supreme law to which all other laws must conform
and in accordance with which all private rights must be determined and all
public authority administered.11 Under the doctrine of constitutional
supremacy, if a law or contract violates any norm of the constitution that law
or contract whether promulgated by the legislative or by the executive branch
or entered into by private persons for private purposes is null and void and
without any force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in every statute
and contract.
Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and carry
out the purposes of the framers who merely establish an outline of government
providing for the different departments of the governmental machinery and
securing certain fundamental and inalienable rights of citizens. 12 A provision
which lays down a general principle, such as those found in Art. II of the 1987
Constitution, is usually not self-executing. But a provision which is complete in
itself and becomes operative without the aid of supplementary or enabling
legislation, or that which supplies sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-executing. Thus a constitutional
provision is self-executing if the nature and extent of the right conferred and
the liability imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is no
language indicating that the subject is referred to the legislature for action. 13
As against constitutions of the past, modern constitutions have been generally
drafted upon a different principle and have often become in effect extensive
codes of laws intended to operate directly upon the people in a manner similar
to that of statutory enactments, and the function of constitutional conventions
has evolved into one more like that of a legislative body. Hence, unless it is
expressly provided that a legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions of the constitution are self-
executing If the constitutional provisions are treated as requiring legislation
instead of self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law. 14 This can be
cataclysmic. That is why the prevailing view is, as it has always been, that
. . . in case of doubt, the Constitution should be considered self-
executing rather than non-self-executing . . . . Unless the contrary is
clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature
discretion to determine when, or whether, they shall be effective.
These provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply refusing
to pass the needed implementing statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution
is clearly not self-executing, as they quote from discussions on the floor of the
1986 Constitutional Commission
MR. RODRIGO. Madam President, I am asking this question as the
Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it be
understood as a preference to qualified Filipinos vis-a-vis Filipinos
who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is
it to remove the word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED
FILIPINOS" as against whom? As against aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use
the word "QUALIFIED" because the existing laws or prospective laws
will always lay down conditions under which business may be
done. For example, qualifications on the setting up of other financial
structures, et cetera (emphasis supplied by respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as
not to make it appear that it is non-self-executing but simply for purposes of
style. But, certainly, the legislature is not precluded from enacting other further
laws to enforce the constitutional provision so long as the contemplated statute
squares with the Constitution. Minor details may be left to the legislature
without impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the
constitution, further the operation of such a provision, prescribe a practice to
be used for its enforcement, provide a convenient remedy for the protection of
the rights secured or the determination thereof, or place reasonable
safeguards around the exercise of the right. The mere fact that legislation may
supplement and add to or prescribe a penalty for the violation of a self-
executing constitutional provision does not render such a provision ineffective
in the absence of such legislation. The omission from a constitution of any
express provision for a remedy for enforcing a right or liability is not necessarily
an indication that it was not intended to be self-executing. The rule is that a
self-executing provision of the constitution does not necessarily exhaust
legislative power on the subject, but any legislation must be in harmony with
the constitution, further the exercise of constitutional right and make it more
available. 17 Subsequent legislation however does not necessarily mean that
the subject constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second
par., of Art. XII is implied from the tenor of the first and third paragraphs of the
same section which undoubtedly are not self-executing. 18 The argument is
flawed. If the first and third paragraphs are not self-executing because
Congress is still to enact measures to encourage the formation and operation
of enterprises fully owned by Filipinos, as in the first paragraph, and the State
still needs legislation to regulate and exercise authority over foreign
investments within its national jurisdiction, as in the third paragraph, then
a fortiori, by the same logic, the second paragraph can only be self-executing
as it does not by its language require any legislation in order to give preference
to qualified Filipinos in the grant of rights, privileges and concessions covering
the national economy and patrimony. A constitutional provision may be self-
executing in one part and non-self-executing in another. 19
Even the cases cited by respondents holding that certain constitutional
provisions are merely statements of principles and policies, which are basically
not self-executing and only placed in the Constitution as moral incentives to
legislation, not as judicially enforceable rights are simply not in point. Basco
v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional
provisions on personal dignity, 21 the sanctity of family life, 22 the vital role of
the youth in nation-building 23 the promotion of social justice, 24 and the values
of education.25 Tolentino v. Secretary of Finance 26 refers to the constitutional
provisions on social justice and human rights 27 and on
education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the
promotion of general welfare, 30 the sanctity of family life, 31 the vital role of the
youth in nation-building 32 and the promotion of total human liberation and
development.33 A reading of these provisions indeed clearly shows that they
are not judicially enforceable constitutional rights but merely guidelines for
legislation. The very terms of the provisions manifest that they are only
principles upon which the legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution
is a mandatory, positive command which is complete in itself and which needs
no further guidelines or implementing laws or rules for its enforcement. From
its very words the provision does not require any legislation to put it in
operation. It is per sejudicially enforceable When our Constitution mandates
that [i]n the grant of rights, privileges, and concessions covering national
economy and patrimony, the State shall give preference to qualified Filipinos,
it means just that qualified Filipinos shall be preferred. And when our
Constitution declares that a right exists in certain specified circumstances an
action may be maintained to enforce such right notwithstanding the absence
of any legislation on the subject; consequently, if there is no statute especially
enacted to enforce such constitutional right, such right enforces itself by its
own inherent potency and puissance, and from which all legislations must take
their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission 34 explains
The patrimony of the Nation that should be conserved and developed
refers not only to out rich natural resources but also to the cultural
heritage of out race. It also refers to our intelligence in arts, sciences
and letters. Therefore, we should develop not only our lands, forests,
mines and other natural resources but also the mental ability or faculty
of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage. 35 When the Constitution speaks of national patrimony, it refers not
only to the natural resources of the Philippines, as the Constitution could have
very well used the term natural resources, but also to the cultural heritage of
the Filipinos.
Manila Hotel has become a landmark a living testimonial of Philippine
heritage. While it was restrictively an American hotel when it first opened in
1912, it immediately evolved to be truly Filipino, Formerly a concourse for the
elite, it has since then become the venue of various significant events which
have shaped Philippine history. It was called the Cultural Center of the 1930's.
It was the site of the festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the Philippine
Government. it plays host to dignitaries and official visitors who are accorded
the traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila Hotel: The
Heart and Memory of a City. 37During World War II the hotel was converted by
the Japanese Military Administration into a military headquarters. When the
American forces returned to recapture Manila the hotel was selected by the
Japanese together with Intramuros as the two (2) places fro their final stand.
Thereafter, in the 1950's and 1960's, the hotel became the center of political
activities, playing host to almost every political convention. In 1970 the hotel
reopened after a renovation and reaped numerous international recognitions,
an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was
the site of a failedcoup d' etat where an aspirant for vice-president was
"proclaimed" President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the
triumphs and failures, loves and frustrations of the Filipinos; its existence is
impressed with public interest; its own historicity associated with our struggle
for sovereignty, independence and nationhood. Verily, Manila Hotel has
become part of our national economy and patrimony. For sure, 51% of the
equity of the MHC comes within the purview of the constitutional shelter for it
comprises the majority and controlling stock, so that anyone who acquires or
owns the 51% will have actual control and management of the hotel. In this
instance, 51% of the MHC cannot be disassociated from the hotel and the land
on which the hotel edifice stands. Consequently, we cannot sustain
respondents' claim that theFilipino First Policy provision is not applicable since
what is being sold is only 51% of the outstanding shares of the corporation,
not the Hotel building nor the land upon which the building stands. 38
The argument is pure sophistry. The term qualified Filipinos as used in Our
Constitution also includes corporations at least 60% of which is owned by
Filipinos. This is very clear from the proceedings of the 1986 Constitutional
Commission
THE PRESIDENT. Commissioner Davide is recognized.
The phrase preference to qualified Filipinos was explained thus
MR. DAVIDE. I would like to introduce an amendment to the Nolledo
amendment. And the amendment would consist in substituting the
words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF
THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS
WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED
BY SUCH CITIZENS.
xxx xxx xxx
MR. MONSOD. Madam President, apparently the proponent is
agreeable, but we have to raise a question. Suppose it is a corporation
that is 80-percent Filipino, do we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual
Filipino. What about a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say
that the preference should only be 100-percent Filipino.
MR: DAVIDE. I want to get that meaning clear because "QUALIFIED
FILIPINOS" may refer only to individuals and not to juridical
personalities or entities.
MR. MONSOD. We agree, Madam President. 39
xxx xxx xxx
MR. RODRIGO. Before we vote, may I request that the amendment
be read again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT OF
RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
"Filipinos" here, as intended by the proponents, will include not only
individual Filipinos but also Filipino-controlled entities or entities fully-
controlled by Filipinos. 40
MR. FOZ. Madam President, I would like to request Commissioner
Nolledo to please restate his amendment so that I can ask a question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a foreign enterprise is
qualified and a Filipino enterprise is also qualified, will the Filipino
enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipino enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision Commissioner Nolledo
continues
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be
"SHALL THE STATE SHALL GlVE PREFERENCE TO QUALIFIED
FILIPINOS. This embodies the so-called "Filipino First" policy. That
means that Filipinos should be given preference in the grant of
concessions, privileges and rights covering the national patrimony. 42
The exchange of views in the sessions of the Constitutional Commission
regarding the subject provision was still further clarified by Commissioner
Nolledo 43
Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias
in all economic concerns. It is better known as the FILIPINO FIRST
Policy . . . This provision was never found in previous Constitutions . .
..
The term "qualified Filipinos" simply means that preference shall be
given to those citizens who can make a viable contribution to the
common good, because of credible competence and efficiency. It
certainly does NOT mandate the pampering and preferential treatment
to Filipino citizens or organizations that are incompetent or inefficient,
since such an indiscriminate preference would be counter productive
and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when
a choice has to be made between a "qualified foreigner" end a
"qualified Filipino," the latter shall be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered
by respondent GSIS and selected as one of the qualified bidders. It was pre-
qualified by respondent GSIS in accordance with its own guidelines so that the
sole inference here is that petitioner has been found to be possessed of proven
management expertise in the hotel industry, or it has significant equity
ownership in another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel. 44
The penchant to try to whittle away the mandate of the Constitution by arguing
that the subject provision is not self-executory and requires implementing
legislation is quite disturbing. The attempt to violate a clear constitutional
provision by the government itself is only too distressing. To adopt such
a line of reasoning is to renounce the duty to ensure faithfulness to the
Constitution. For, even some of the provisions of the Constitution which
evidently need implementing legislation have juridical life of their own and can
be the source of a judicial remedy. We cannot simply afford the government a
defense that arises out of the failure to enact further enabling, implementing
or guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on
constitutional government is apt
The executive department has a constitutional duty to implement laws,
including the Constitution, even before Congress acts provided that
there are discoverable legal standards for executive action. When the
executive acts, it must be guided by its own understanding of the
constitutional command and of applicable laws. The responsibility for
reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to
ask Congress, or perhaps the Court, for an interpretation every time
the executive is confronted by a constitutional command. That is not
how constitutional government operates. 45
Respondents further argue that the constitutional provision is addressed to the
State, not to respondent GSIS which by itself possesses a separate and
distinct personality. This argument again is at best specious. It is undisputed
that the sale of 51% of the MHC could only be carried out with the prior
approval of the State acting through respondent Committee on Privatization.
As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes
the sale of the assets of respondents GSIS and MHC a "state action." In
constitutional jurisprudence, the acts of persons distinct from the government
are considered "state action" covered by the Constitution (1) when the activity
it engages in is a "public function;" (2) when the government is so significantly
involved with the private actor as to make the government responsible for his
action; and, (3) when the government has approved or authorized the action.
It is evident that the act of respondent GSIS in selling 51% of its share in
respondent MHC comes under the second and third categories of "state
action." Without doubt therefore the transaction. although entered into by
respondent GSIS, is in fact a transaction of the State and therefore subject to
the constitutional command. 46
When the Constitution addresses the State it refers not only to the people but
also to the government as elements of the State. After all, government is
composed of three (3) divisions of power legislative, executive and judicial.
Accordingly, a constitutional mandate directed to the State is correspondingly
directed to the three(3) branches of government. It is undeniable that in this
case the subject constitutional injunction is addressed among others to the
Executive Department and respondent GSIS, a government instrumentality
deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is
not yet the winning bidder. The bidding rules expressly provide that the highest
bidder shall only be declared the winning bidder after it has negotiated and
executed the necessary contracts, and secured the requisite approvals. Since
the "Filipino First Policy provision of the Constitution bestows preference on
qualified Filipinos the mere tending of the highest bid is not an assurance that
the highest bidder will be declared the winning bidder. Resultantly,
respondents are not bound to make the award yet, nor are they under
obligation to enter into one with the highest bidder. For in choosing the
awardee respondents are mandated to abide by the dictates of the 1987
Constitution the provisions of which are presumed to be known to all the
bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional
provision is, as it should be, impliedly written in the bidding rules issued by
respondent GSIS, lest the bidding rules be nullified for being violative of the
Constitution. It is a basic principle in constitutional law that all laws and
contracts must conform with the fundamental law of the land. Those which
violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this
to other Qualified Bidders that have validly submitted bids provided that these
Qualified Bidders are willing to match the highest bid in terms of price per
share. 47 Certainly, the constitutional mandate itself is reason enough not to
award the block of shares immediately to the foreign bidder notwithstanding
its submission of a higher, or even the highest, bid. In fact, we cannot conceive
of a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering the
national economy and patrimony, thereby exceeding the bid of a Filipino, there
is no question that the Filipino will have to be allowed to match the bid of the
foreign entity. And if the Filipino matches the bid of a foreign firm the award
should go to the Filipino. It must be so if we are to give life and meaning to
the Filipino First Policy provision of the 1987 Constitution. For, while this may
neither be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is, omnipresent to be simply disregarded. To ignore it would
be to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage
foreign investors. But the Constitution and laws of the Philippines are
understood to be always open to public scrutiny. These are given factors which
investors must consider when venturing into business in a foreign jurisdiction.
Any person therefore desiring to do business in the Philippines or with any of
its agencies or instrumentalities is presumed to know his rights and obligations
under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning
the sale to Renong Berhad since petitioner was well aware from the beginning
that a foreigner could participate in the bidding is meritless. Undoubtedly,
Filipinos and foreigners alike were invited to the bidding. But foreigners may
be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails
to match the highest bid tendered by the foreign entity. In the case before us,
while petitioner was already preferred at the inception of the bidding because
of the constitutional mandate, petitioner had not yet matched the bid offered
by Renong Berhad. Thus it did not have the right or personality then to compel
respondent GSIS to accept its earlier bid. Rightly, only after it had matched the
bid of the foreign firm and the apparent disregard by respondent GSIS of
petitioner's matching bid did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless
perhaps the award has been finally made. To insist on selling the Manila Hotel
to foreigners when there is a Filipino group willing to match the bid of the
foreign group is to insist that government be treated as any other ordinary
market player, and bound by its mistakes or gross errors of judgment,
regardless of the consequences to the Filipino people. The miscomprehension
of the Constitution is regrettable. Thus we would rather remedy the indiscretion
while there is still an opportunity to do so than let the government develop the
habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of shares of MHC and to execute
the necessary agreements and documents to effect the sale in accordance not
only with the bidding guidelines and procedures but with the Constitution as
well. The refusal of respondent GSIS to execute the corresponding documents
with petitioner as provided in the bidding rules after the latter has matched the
bid of the Malaysian firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied
in the 1987 Constitution not merely to be used as a guideline for future
legislation but primarily to be enforced; so must it be enforced. This Court as
the ultimate guardian of the Constitution will never shun, under any reasonable
circumstance, the duty of upholding the majesty of the Constitution which it is
tasked to defend. It is worth emphasizing that it is not the intention of this Court
to impede and diminish, much less undermine, the influx of foreign
investments. Far from it, the Court encourages and welcomes more business
opportunities but avowedly sanctions the preference for Filipinos whenever
such preference is ordained by the Constitution. The position of the Court on
this matter could have not been more appropriately articulated by Chief Justice
Narvasa
 As scrupulously as it has tried to observe that it is not its function to
substitute its judgment for that of the legislature or the executive about
the wisdom and feasibility of legislation economic in nature, the
Supreme Court has not been spared criticism for decisions perceived
as obstacles to economic progress and development . . . in connection
with a temporary injunction issued by the Court's First Division against
the sale of the Manila Hotel to a Malaysian Firm and its partner, certain
statements were published in a major daily to the effect that injunction
"again demonstrates that the Philippine legal system can be a major
obstacle to doing business here.
Let it be stated for the record once again that while it is no business of
the Court to intervene in contracts of the kind referred to or set itself
up as the judge of whether they are viable or attainable, it is its
bounden duty to make sure that they do not violate the Constitution or
the laws, or are not adopted or implemented with grave abuse of
discretion amounting to lack or excess of jurisdiction. It will never shirk
that duty, no matter how buffeted by winds of unfair and ill-informed
criticism. 48
Privatization of a business asset for purposes of enhancing its business
viability and preventing further losses, regardless of the character of the asset,
should not take precedence over non-material values. A commercial, nay even
a budgetary, objective should not be pursued at the expense of national pride
and dignity. For the Constitution enshrines higher and nobler non-material
values. Indeed, the Court will always defer to the Constitution in the proper
governance of a free society; after all, there is nothing so sacrosanct in any
economic policy as to draw itself beyond judicial review when the Constitution
is involved. 49
Nationalism is inherent, in the very concept of the Philippines being a
democratic and republican state, with sovereignty residing in the Filipino
people and from whom all government authority emanates. In nationalism, the
happiness and welfare of the people must be the goal. The nation-state can
have no higher purpose. Any interpretation of any constitutional provision must
adhere to such basic concept. Protection of foreign investments, while
laudible, is merely a policy. It cannot override the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity
to be sold to the highest bidder solely for the sake of privatization. We are not
talking about an ordinary piece of property in a commercial district. We are
talking about a historic relic that has hosted many of the most important events
in the short history of the Philippines as a nation. We are talking about a hotel
where heads of states would prefer to be housed as a strong manifestation of
their desire to cloak the dignity of the highest state function to their official visits
to the Philippines. Thus the Manila Hotel has played and continues to play a
significant role as an authentic repository of twentieth century Philippine
history and culture. In this sense, it has become truly a reflection of the Filipino
soul a place with a history of grandeur; a most historical setting that has
played a part in the shaping of a country. 51
This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark this Grand Old Dame of hotels
in Asia to a total stranger. For, indeed, the conveyance of this epic exponent
of the Filipino psyche to alien hands cannot be less than mephistophelian for
it is, in whatever manner viewed, a veritable alienation of a nation's soul for
some pieces of foreign silver. And so we ask: What advantage, which cannot
be equally drawn from a qualified Filipino, can be gained by the Filipinos
Manila Hotel and all that it stands for is sold to a non-Filipino? How much
of national pride will vanish if the nation's cultural heritage is entrusted to a
foreign entity? On the other hand, how much dignity will be preserved and
realized if the national patrimony is safekept in the hands of a qualified,
zealous and well-meaning Filipino? This is the plain and simple meaning of
the Filipino First Policy provision of the Philippine Constitution. And this Court,
heeding the clarion call of the Constitution and accepting the duty of being the
elderly watchman of the nation, will continue to respect and protect the sanctity
of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL are directed to CEASE and DESIST from selling 51% of the shares
of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the
matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to
purchase the subject 51% of the shares of the Manila Hotel Corporation at
P44.00 per share and thereafter to execute the necessary clearances and to
do such other acts and deeds as may be necessary for purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr.,
JJ., concur.
Separate Opinions
PADILLA, J., concurring:
I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would
like to expound a bit more on the concept of national patrimony as including
within its scope and meaning institutions such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under "national
patrimony" over which qualified Filipinos have the preference, in ownership
and operation. The Constitutional provision on point states:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall Give preference to qualified
Filipinos. 1
Petitioner's argument, I believe, is well taken. Under the 1987 Constitution,
"national patrimony" consists of the natural resources provided by Almighty
God (Preamble) in our territory (Article I) consisting of land, sea, and air. 2study
of the 1935 Constitution, where the concept of "national patrimony" originated,
would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a
concept embracing not only their natural resources of the country but
practically everything that belongs to the Filipino people, the tangible and the
material as well as the intangible and the spiritual assets and possessions of
the people. It is to be noted that the framers did not stop with conservation.
They knew that conservation alone does not spell progress; and that this may
be achieved only through development as a correlative factor to assure to the
people not only the exclusive ownership, but also the exclusive benefits of their
national patrimony). 3
Moreover, the concept of national patrimony has been viewed as referring not
only to our rich natural resources but also to the cultural heritage of our race. 4
There is no doubt in my mind that the Manila Hotel is very much a part of our
national patrimony and, as such, deserves constitutional protection as to who
shall own it and benefit from its operation. This institution has played an
important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest
House for visiting foreign heads of state, dignitaries, celebrities, and others. 5
It is therefore our duty to protect and preserve it for future generations of
Filipinos. As President Manuel L. Quezon once said, we must exploit the
natural resources of our country, but we should do so with. an eye to the
welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and
reserve it for Filipinos was the intent of the distinguished gentlemen who first
framed our Constitution. Thus, in debating the need for nationalization of our
lands and natural resources, one expounded that we should "put more teeth
into our laws, and; not make the nationalization of our lands and natural
resources a subject of ordinary legislation but of constitutional enactment" 6 To
quote further: "Let not our children be mere tenants and trespassers in their
own country. Let us preserve and bequeath to them what is rightfully theirs,
free from all foreign liens and encumbrances". 7
Now, a word on preference. In my view "preference to qualified Filipinos", to
be meaningful, must refer not only to things that are peripheral, collateral, or
tangential. It must touch and affect the very "heart of the existing order." In the
field of public bidding in the acquisition of things that pertain to the national
patrimony, preference to qualified Filipinos must allow a qualified Filipino to
match or equal the higher bid of a non-Filipino; the preference shall not operate
only when the bids of the qualified Filipino and the non-Filipino are equal in
which case, the award should undisputedly be made to the qualified Filipino.
The Constitutional preference should give the qualified Filipino an opportunity
to match or equal the higher bid of the non-Filipino bidder if the preference of
the qualified Filipino bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign
investments in our country, stress is on the elimination of barriers to foreign
trade and investment in the country. While government agencies, including the
courts should re-condition their thinking to such a trend, and make it easy and
even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our
national identity, culture and heritage are involved. In the hotel industry, for
instance, foreign investors have established themselves creditably, such as in
the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels. This should
not stop us from retaining 51% of the capital stock of the Manila Hotel
Corporation in the hands of Filipinos. This would be in keeping with the intent
of the Filipino people to preserve our national patrimony, including our
historical and cultural heritage in the hands of Filipinos.
VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared
by Mr. Justice Reynato S. Puno in a well written separate (dissenting) opinion,
that:
First, the provision in our fundamental law which provides that "(I)n the grant
of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos" 1 is self-
executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.
Second, the term "patrimony" does not merely refer to the country's natural
resources but also to its cultural heritage. A "historical landmark," to use the
words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now indeed become
part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a
government entity which derives its authority from the State, in selling 51% of
its share in MHC should be considered an act of the State subject to the
Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it
somewhat difficult to take the same path traversed by the forceful reasoning
of Justice Puno. In the particular case before us, the only meaningful
preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls
for millions of dollars to be at par (to the last cent) with another. The magnitude
of the magnitude of the bids is such that it becomes hardly possible for the
competing bids to stand exactly "equal" which alone, under the dissenting
view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great
disappointment, a letdown that it did not deserve, by a simple and timely advise
of the proper rules of bidding along with the peculiar constitutional implications
of the proposed transaction. It is also regrettable that the Court at time is seen,
to instead, be the refuge for bureaucratic inadequate which create the
perception that it even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only way to
enforce the constitutional mandate that "[i]n the grant of rights, privileges and
concessions covering the national patrimony the State shall give preference to
qualified Filipinos" 1 is to allow petitioner Philippine corporation to equal the bid
of the Malaysian firm Renong Berhad for the purchase of the controlling shares
of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified
Filipino of Philippine corporation can be given preference in the enjoyment of
a right, privilege or concession given by the State, by favoring it over a foreign
national corporation.
Under the rules on public bidding of the Government Service and Insurance
System, if petitioner and the Malaysian firm had offered the same price per
share, "priority [would be given] to the bidder seeking the larger ownership
interest in MHC," 2 so that petitioner bid for more shares, it would be preferred
to the Malaysian corporation for that reason and not because it is a Philippine
corporation. Consequently, it is only in cases like the present one, where an
alien corporation is the highest bidder, that preferential treatment of the
Philippine corporation is mandated not by declaring it winner but by allowing it
"to match the highest bid in terms of price per share" before it is awarded the
shares of stocks. 3That, to me, is what "preference to qualified Filipinos" means
in the context of this case by favoring Filipinos whenever they are at a
disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno 4 to a 1947 statute
giving "preference to Filipino citizens in the lease of public market stalls." 5 This
Court upheld the cancellation of existing leases covering market stalls
occupied by persons who were not Filipinos and the award thereafter of the
stalls to qualified Filipino vendors as ordered by the Department of Finance.
Similarly, in Vda. de Salgado v. De la Fuente, 6 this Court sustained the validity
of a municipal ordinance passed pursuant to the statute (R.A. No. 37),
terminating existing leases of public market stalls and granting preference to
Filipino citizens in the issuance of new licenses for the occupancy of the stalls.
In Chua Lao v. Raymundo, 7the preference granted under the statute was held
to apply to cases in which Filipino vendors sought the same stalls occupied by
alien vendors in the public markets even if there were available other stalls as
good as those occupied by aliens. "The law, apparently, is applicable
whenever there is a conflict of interest between Filipino applicants and aliens
for lease of stalls in public markets, in which situation the right to preference
immediately arises." 8
Our legislation on the matter thus antedated by a quarter of a century efforts
began only in the 1970s in America to realize the promise of equality, through
affirmative action and reverse discrimination programs designed to remedy
past discrimination against colored people in such areas as employment,
contracting and licensing. 9Indeed, in vital areas of our national economy, there
are situations in which the only way to place Filipinos in control of the national
economy as contemplated in the Constitution 10 is to give them preferential
treatment where they can at least stand on equal footing with aliens.
There need be no fear that thus preferring Filipinos would either invite foreign
retaliation or deprive the country of the benefit of foreign capital or know-how.
We are dealing here not with common trades of common means of livelihood
which are open to aliens in our midst, 11 but with the sale of government
property, which is like the grant of government largess of benefits and
concessions covering the national economy" and therefore no one should
begrudge us if we give preferential treatment to our citizens. That at any rate
is the command of the Constitution. For the Manila Hotel is a business owned
by the Government. It is being privatized. Privatization should result in the
relinquishment of the business in favor of private individuals and groups who
are Filipino citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to
petitioner we would be trading competence and capability for nationalism. Both
petitioner and the Malaysian firm are qualified, having hurdled the
prequalification process. 12 It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the highest
bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder
to match the highest bid of an alien could encourage speculation, since all that
a Filipino entity would then do would be not to make a bid or make only a token
one and, after it is known that a foreign bidder has submitted the highest bid,
make an offer matching that of the foreign firm. This is not possible under the
rules on public bidding of the GSIS. Under these rules there is a minimum bid
required (P36.87 per share for a range of 9 to 15 million shares). 13 Bids below
the minimum will not be considered. On the other hand, if the Filipino entity,
after passing the prequalification process, does not submit a bid, he will not be
allowed to match the highest bid of the foreign firm because this is a privilege
allowed only to those who have "validly submitted bids." 14 The suggestion is,
to say the least, fanciful and has no basis in fact.
For the foregoing reasons, I vote to grant the petition.
TORRES, JR., J., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we are
not confronted in the case at bar with legal and constitutional issues and
yet I am driven so to speak on the side of history. The reason perhaps is due
to the belief that in the words of Justice Oliver Wendell Holmes, Jr., a "page of
history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has
a historical and cultural aspect within the meaning of the constitution and thus,
forming part of the "patrimony of the nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified
Filipinos.
The State shall regulate and exercise authority over foreign
investments within its national goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the
same Constitution pertaining to "Declaration of Principles and State Policies"
which ordain
The State shall develop a self-reliant and independent national
economy effectively by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of
the highlights in the 1987 Constitution Commission proceedings thus:
xxx xxx xxx
MR. NOLLEDO. The Amendment will read: "IN THE GRANT OF
RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS". And the word
"Filipinos" here, as intended by the proponents, will include not only
individual Filipinos but also Filipino-Controlled entities fully controlled
by Filipinos (Vol. III, Records of the Constitutional Commission, p.
608).
MR. MONSOD. We also wanted to add, as Commissioner Villegas
said, this committee and this body already approved what is known as
the Filipino First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV, Records of the
Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:
MR. NOLLEDO. In the grant of rights, privileges and concessions
covering the national economy and patrimony, the State shall give
preference to qualified Filipinos.
MR. FOZ. In connection with that amendment, if a foreign enterprise
is qualified and the Filipinos enterprise is also qualified, will the Filipino
enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipino enterprise, will the Filipino still be preferred:?
MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616, Records of the
Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and
spirit of the Malolos Constitution of 1898, the 1935 Constitution and the 1973
Constitutions. That we have no reneged on this nationalist policy is articulated
in one of the earliest case, this Court said
The nationalistic tendency is manifested in various provisions of the
Constitution. . . . It cannot therefore be said that a law imbued with the
same purpose and spirit underlying many of the provisions of the
Constitution is unreasonable, invalid or unconstitutional (Ichong, et al.
vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not
legislated and is the product of events, customs, usages and practices. It is
actually a product of growth and acceptance by the collective mores of a race.
It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the
Manila Hotel is witness to historic events (too numerous to mention) which
shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the single
instances of the legal largese which have given rise to this controversy. As I
believe that has been exhaustively discussed in the ponencia. Suffice it to say
at this point that the history of the Manila Hotel should not be placed in the
auction block of a purely business transaction, where profits subverts the
cherished historical values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable
tradition which, in the words of the philosopher Salvador de Madarriaga
tradition is "more of a river than a stone, it keeps flowing, and one must view
the flowing , and one must view the flow of both directions. If you look towards
the hill from which the river flows, you see tradition in the form of forceful
currents that push the river or people towards the future, and if you look the
other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind
of tradition. Let us not jettison the tradition of the Manila Hotel and thereby
repeat our colonial history.
I grant, of course the men of the law can see the same subject in different
lights.
I remember, however, a Spanish proverb which says "He is always right
who suspects that he makes mistakes". On this note, I say that if I have to
make a mistake, I would rather err upholding the belief that the Filipino be first
under his Constitution and in his own land.
I vote GRANT the petition.
PUNO, J., dissenting:
This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel
Corporation, a domestic corporation, to stop the Government Service
Insurance System (GSIS) from selling the controlling shares of the Manila
Hotel Corporation to a foreign corporation. Allegedly, the sale violates the
second paragraph of section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is the
sole owner of the Manila Hotel which it operates through its subsidiary, the
Manila Hotel Corporation. Manila Hotel was included in the privatization
program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000
shares, in the Manila Hotel Corporation. After the absence of bids at the first
public bidding, the block of shares offered for sale was increased from a
maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or
an international marketing/reservation system, and financial support to
strengthen the profitability and performance of the Manila Hotel" 1 The proposal
was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the
bidding rules were furnished interested parties. Petitioner Manila Prince Hotel,
a domestic corporation, and Renong Berhad, Malaysian firm with ITT Sheraton
as operator, prequalified. 2
The bidding rules and procedures entitled "Guidelines and Procedures:
Second Prequalification and Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared
the Winning Bidder/Strategic Partner and will be awarded the Block of
Shares:
First Pass the prequalification process;
 Second Submit the highest bid on a price per share basis for the
Block of Shares;
Third Negotiate and execute the necessary contracts with
GSIS/MHC not later than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
The Winning Bidder/Strategic Partner will be expected to provide
management expertise and/or an international marketing
reservation system, and financial support to strengthen the
profitability and performance of The Manila Hotel. In this context,
the GSIS is inviting to the prequalification process any local and/or
foreign corporation, consortium/joint venture or juridical entity with
at least one of the following qualifications:
a. Proven management .expertise in the hotel industry; or
b. Significant equity ownership (i.e. board representation) in
another hotel company; or
c. Overall management and marketing expertise to
successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide
access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the
Registration Office between 9:00 AM to 4:00 PM during working
days within the period specified in Section III. Each set of
documents consists of the following:
a. Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization
b. Confidential Information Memorandum: The Manila Hotel
Corporation
c. Letter of Invitation. to the Prequalification and Bidding
Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference will be held at The
Manila Hotel on the date specified in Section III to allow the
Applicant to seek clarifications and further information
regarding the guidelines and procedures. Only those who
purchased the prequalification documents will be allowed in
this conference. Attendance to this conference is strongly
advised, although the Applicant will not be penalized if it does
not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification
documents (1 original set plus 4 copies) at the Registration
Office between 9:00 AM to 4:00 PM during working days
within the period specified in Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with the
assistance of the TEC based on the Information Package and
other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the
evaluation will consider the overall qualifications of the group,
taking into account the contribution of each member to the
venture.
 3. The decision of the PBAC with respect to the results of the
PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the criteria
set forth below:
a. Business management expertise, track record, and
experience
b. Financial capability.
c. Feasibility and acceptability of the proposed
strategic plan for the Manila Hotel
5. The PBAC will shortlist such number of Applicants as it may
deem appropriate.
6. The parties that prequalified in the first MHC public bidding
ITT Sheraton, Marriot International Inc., Renaissance
Hotels International Inc., consortium of RCBC Capital/Ritz
Carlton may participate in the Public Bidding without having
to undergo the prequalification process again.
G. SHORTLIST OF QUALIFIED BIDDERS
1. A notice of prequalification results containing the shortlist
of Qualified Bidders will be posted at the Registration Office
at the date specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal
by member whose qualification was a material consideration
for being included in the shortlist is ground for disqualification
of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible
to participate in the Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three
Hundred Thousand (15,300,000) shares of stock representing
Thirty Percent to Fifty-One Percent (30%-51%) of the issued
and outstanding shares of MHC, will be offered in the Public
Bidding by the GSIS. The Qualified Bidders will have the
Option of determining the number of shares within the range
to bid for. The range is intended to attract bidders with
different preferences and objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The
minimum bid required on a price per share basis for the Block
of Shares is Thirty-Six Pesos and Sixty-Seven Centavos
(P36.67).
2. Bids should be in the Philippine currency payable to the
GSIS.
3. Bids submitted with an equivalent price per share below the
minimum required will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form,
a copy of which is attached as Annex IV. The Official Bid Form
must be properly accomplished in all details; improper
accomplishment may be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit
the Official Bid Form, which will indicate the offered purchase
price, in a sealed envelope marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
 1. WRITTEN AUTHORITY TO BID (UNDER OATH).
If the Qualified Bidder is a corporation, the representative of
the Qualified Bidder should submit a Board resolution which
adequately authorizes such representative to bid for and in
behalf of the corporation with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
If the Qualified Bidder is a Consortium/Joint Venture, each
member of the Consortium/Joint venture should submit a
Board resolution authorizing one of its members and such
member's representative to make the bid on behalf of the
group with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft payable to
the "Government Service Insurance System" and issued by a
reputable banking institution duly licensed to do business in
the Philippines and acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable banking
institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less than the
required amount.
c. If the Bid Security is in the form of a manager's check or
unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic
Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.
e. The Bid Security of the Qualified Bidder will be returned immediately
after the Public Bidding if the Qualified Bidder is not declared the
Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:
i. Execute the Stock Purchase and Sale Agreement with GSIS
not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price not later
than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for any other
reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the
following location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.
2. The Secretariat of the PBAC will be stationed at the Public Bidding
to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents
in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked "OFFICIAL BID"
and "SUPPORTING BID DOCUMENTS" must be
submitted simultaneously to the Secretariat between
9:00 AM and 2:00 PM, Philippine Standard Time, on
the date of the Public Bidding. No bid shall be
accepted after the closing time. Opened or tampered
bids shall not be accepted.
6. The Secretariat will log and record the actual time
of submission of the two sealed envelopes. The
actual time of submission will also be indicated by the
Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be
dropped in the corresponding bid boxes provided for
the purpose. These boxes will be in full view of the
invited public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the date of the Public
Bidding, the PBAC will open all sealed envelopes marked
"SUPPORTING BID DOCUMENTS" for screening, evaluation
and acceptance. Those who submitted incomplete/insufficient
documents or document/s which is/are not substantially in the
form required by PBAC will be disqualified. The envelope
containing their Official Bid Form will be immediately returned
to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be
opened at 3:00 PM. The name of the bidder and the amount
of its bid price will be read publicly as the envelopes are
opened.
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share
basis. In the event of a tie wherein two or more bids have the
same equivalent price per share, priority will be given to the
bidder seeking the larger ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed
period; or
b. There is only one (1) bid that is submitted and
acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set
forth below by October 23, 1995 or the Highest Bidder will lose
the right to purchase the Block of Shares and GSIS will
instead offer the Block of Shares to the other Qualified
Bidders:
a. The Highest Bidder must negotiate and execute
with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.
2. In the event that the Highest Bidder chooses a
Management Contract for The Manila Hotel, the maximum
levels for the management fee structure that GSIS/MHC are
prepared to accept in the Management Contract are as
follows:
a. Basic management fee: Maximum of 2.5% of gross
revenues.(1)
 b. Incentive fee: Maximum of 8.0% of gross operating
profit(1) after deducting undistributed overhead
expenses and the basic management fee.
c. Fixed component of the international
marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for
hotels.
The GSIS/MHC have indicated above the acceptable
parameters for the hotel management fees to facilitate the
negotiations with the Highest Bidder for the Management
Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract
for The Manila Hotel should determine whether or not the
management fee structure above is acceptable before
submitting their prequalification documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder cannot be awarded
the Block of Shares, GSIS may offer this to the other
Qualified Bidders that have validly submitted bids provided
that these Qualified are willing to match the highest bid in
terms of price per share.
2. The order of priority among the interested Qualified
Bidders will be in accordance wit the equivalent price per
share of their respective bids in their public Bidding, i.e.,
first and second priority will be given to the Qualified
Bidders that submitted the second and third highest bids
on the price per share basis, respectively, and so on.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning
Bidder/Strategic Partner after the following conditions are
met:
a. Execution of the necessary contract with
GSIS/MHC not later than October 23, 1995; and
b. Requisite approvals from the GSIS/MHC and
COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with
GSIS/MHC, the Winning Bidder/Strategic Partner must fully
pay, not later than October 23, 1995, the offered purchase
price for the Block of Shares after deducting the Bid Security
applied as downpayment.
2. All payments should be made in the form of a Manager's
Check or unconditional Demand Draft, payable to the
"Government Service Insurance System," issued by a
reputable banking institution licensed to do business in the
Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or
all applications, waive any formality therein, or accept such
application as maybe considered most advantageous to the
GSIS. The GSIS similarly reserves the right to require the
submission of any additional information from the Applicant as
the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public
Bidding prior to acceptance of the bids and call for a new
public bidding under amended rules, and without any liability
whatsoever to any or all the Qualified Bidders, except the
obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the
prequalification/bidding conference, the deadline for the
submission of the prequalification documents, the date of the
Public Bidding or other pertinent activities at least three (3)
calendar days prior to the respective deadlines/target dates.
4. The GSIS sells only whatever rights, interest and
participation it has on the Block of Shares.
 5. All documents and materials submitted by the Qualified
Bidders, except the Bid Security, may be returned upon
request.
6. The decision of the PBAC/GSIS on the results of the Public
Bidding is final. The Qualified Bidders, by participating in the
Public Bidding, are deemed to have agreed to accept and
abide by these results.
7. The GSIS will be held free and harmless form any liability,
suit or allegation arising out of the Public Bidding by the
Qualified Bidders who have participated in the Public
Bidding. 3
The second public bidding was held on September 18, 1995. Petitioner bidded
P41.00 per share for 15,300,000 shares and Renong Berhad bidded P44.00
per share also for 15,300,000 shares. The GSIS declared Renong Berhad the
highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS
offering to match the bid price of Renong Berhad. It requested that the award
be made to itself citing the second paragraph of Section 10, Article XII of the
Constitution. It sent a manager's check for thirty-three million pesos
(P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the
terms and conditions of the contract and technical agreements in the operation
of the hotel, refused to entertain petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining
order on October 18, 1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10
of the Constitution 4 on the "National Economy and Patrimony" which provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified
Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution
is a self-executing provision and does not need implementing
legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing
whether the controlling shares of the Manila Hotel Corporation form
part of our patrimony as a nation;
(3) Whether GSIS is included in the term "State," hence, mandated to
implement section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give
preference to petitioner, a qualified Filipino corporation, over and
above Renong Berhad, a foreign corporation, in the sale of the
controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the
shares to Renong Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the
guiding policies and principles upon which is built the substantial foundation
and general framework of the law and government. 5 As a rule, its provisions
are deemed self-executing and can be enforced without further legislative
action. 6 Some of its provisions, however, can be implemented only through
appropriate laws enacted by the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-executing
is a hard row to hoe. The key lies on the intent of the framers of the
fundamental law oftentimes submerged in its language. A searching inquiry
should be made to find out if the provision is intended as a present enactment,
complete in itself as a definitive law, or if it needs future legislation for
completion and enforcement. 7 The inquiry demands a micro-analysis of the
text and the context of the provision in question. 8
Courts as a rule consider the provisions of the Constitution as self-
executing, 9 rather than as requiring future legislation for their
enforcement. 10 The reason is not difficult to discern. For if they are not treated
as self-executing, the mandate of the fundamental law ratified by the sovereign
people can be easily ignored and nullified by Congress. 11Suffused with
wisdom of the ages is the unyielding rule that legislative actions may give
breath to constitutional rights but congressional in action should not suffocate
them. 12
Thus, we have treated as self-executing the provisions in the Bill of Rights on
arrests, searches and seizures, 13the rights of a person under custodial
investigation, 14 the rights of an accused, 15 and the privilege against self-
incrimination, 16 It is recognize a that legislation is unnecessary to enable
courts to effectuate constitutional provisions guaranteeing the fundamental
rights of life, liberty and the protection of property. 17 The same treatment is
accorded to constitutional provisions forbidding the taking or damaging of
property for public use without just compensation. 18
Contrariwise, case law lays down the rule that a constitutional provision is not
self-executing where it merely announces a policy and its language empowers
the Legislature to prescribe the means by which the policy shall be carried into
effect. 19 Accordingly, we have held that the provisions in Article II of our
Constitution entitled "Declaration of Principles and State Policies" should
generally be construed as mere statements of principles of the State. 20 We
have also ruled that some provisions of Article XIII on "Social Justice and
Human Rights," 21 and Article XIV on "Education Science and Technology,
Arts, Culture end Sports" 22 cannot be the basis of judicially enforceable rights.
Their enforcement is addressed to the discretion of Congress though they
provide the framework for legislation 23 to effectuate their policy content. 24
Guided by this map of settled jurisprudence, we now consider whether Section
10, Article XII of the 1987 Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the
economic and planning agency, when the national interest
dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of
whose capital is owned by such citizens, or such higher
percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will
encourage the formation and operation of enterprises whose
capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give
preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance
with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of
investments in the country 25 to Filipino citizens or to corporations sixty
per
cent 26 of whose capital stock is owned by Filipinos. It further
commands Congress to enact laws that will encourage the formation
and operation of one hundred percent Filipino-owned enterprises. In
checkered contrast, the second paragraph orders the entire State to
give preference to qualified Filipinos in the grant of rights and
privileges covering the national economy and patrimony. The third
paragraph also directs the State to regulate foreign investments in line
with our national goals and well-set priorities.
The first paragraph of Section 10 is not self-executing. By its express
text, there is a categorical command for Congress to enact laws
restricting foreign ownership in certain areas of investments in the
country and to encourage the formation and operation of wholly-
owned Filipino enterprises. The right granted by the provision is clearly
still in esse. Congress has to breathe life to the right by means of
legislation. Parenthetically, this paragraph was plucked from section
3, Article XIV of the 1973 Constitution. 27 The provision in the 1973
Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez, 28 where we upheld the discretionary authority of
Congress to Filipinize certain areas of investments. 29 By reenacting
the 1973 provision, the first paragraph of section 10 affirmed the power
of Congress to nationalize certain areas of investments in favor of
Filipinos.
The second and third paragraphs of Section 10 are different. They are directed
to the State and not to Congress alone which is but one of the three great
branches of our government. Their coverage is also broader for they cover
"the national economy and patrimony" and "foreign investments within [the]
national jurisdiction" and not merely "certain areas of investments." Beyond
debate, they cannot be read as granting Congress the exclusive power to
implement by law the policy of giving preference to qualified Filipinos in the
conferral of rights and privileges covering our national economy and
patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for
any reason whatsoever. Their duty to implement is unconditional and it is now.
The second and the third paragraphs of Section 10, Article XII are thus self-
executing.
This submission is strengthened by Article II of the Constitution entitled
"Declaration of Principles and State Policies." Its Section 19 provides that
"[T]he State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos." It engrafts the all-important Filipino First
policy in our fundamental law and by the use of the mandatory word "shall,"
directs its enforcement by the whole State without any pause or a half- pause
in time.
The second issue is whether the sale of a majority of the stocks of the Manila
Hotel Corporation involves the disposition of part of our national patrimony.
The records of the Constitutional Commission show that the Commissioners
entertained the same view as to its meaning. According to Commissioner
Nolledo, "patrimony" refers not only to our rich natural resources but also to
the cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel
falls within the coverage of the constitutional provision giving preferential
treatment to qualified Filipinos in the grant of rights involving our national
patrimony. The unique value of the Manila Hotel to our history and culture
cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos
and centavos. As chronicled by Beth Day Romulo,31 the hotel first opened on
July 4, 1912 as a first-class hotel built by the American Insular Government for
Americans living in, or passing through, Manila while traveling to the Orient.
Indigenous materials and Filipino craftsmanship were utilized in its
construction, For sometime, it was exclusively used by American and
Caucasian travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began coming to
the Hotel as guests during the Commonwealth period. When the Japanese
occupied Manila, it served as military headquarters and lodging for the highest-
ranking officers from Tokyo. It was at the Hotel and the Intramuros that the
Japanese made their last stand during the Liberation of Manila. After the war,
the Hotel again served foreign guests and Filipinos alike. Presidents and kings,
premiers and potentates, as well as glamorous international film and sports
celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic
meetings, parties and conventions of political parties. The Hotel has reaped
and continues reaping numerous recognitions and awards from international
hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a
biased mind.
The Hotel may not, as yet, have been declared a national cultural treasure
pursuant to Republic Act No. 4846 but that does not exclude it from our
national patrimony. Republic Act No. 4846, "The Cultural Properties
Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or
an "important cultural property. 32 Approved on June 18, 1966 and amended
by P.D. 374 in 1974, the law is limited in its reach and cannot be read as the
exclusive law implementing section 10, Article XII of the 1987 Constitution. To
be sure, the law does not equate cultural treasure and cultural property as
synonymous to the phrase "patrimony of the nation."
The third issue is whether the constitutional command to the State includes
the respondent GSIS. A look at its charter will reveal that GSIS is a
government-owned and controlled corporation that administers funds that
come from the monthly contributions of government employees and the
government. 33 The funds are held in trust for a distinct purpose which cannot
be disposed of indifferently. 34 They are to be used to finance the retirement,
disability and life insurance benefits of the employees and the administrative
and operational expenses of the GSIS, 35 Excess funds, however, are allowed
to be invested in business and other ventures for the benefit of the
employees. 36 It is thus contended that the GSIS investment in the Manila Hotel
Corporation is a simple business venture, hence, an act beyond the
contemplation of section 10, paragraph 2 of Article XII of the Constitution.
The submission is unimpressive. The GSIS is not a pure private corporation.
It is essentially a public corporation created by Congress and granted an
original charter to serve a public purpose. It is subject to the jurisdictions of the
Civil Service Commission 37 and the Commission on Audit. 38 As state-owned
and controlled corporation, it is skin-bound to adhere to the policies spelled
out in the general welfare of the people. One of these policies is the Filipino
First policy which the people elevated as a constitutional command.
The fourth issue demands that we look at the content of phrase "qualified
Filipinos" and their "preferential right." The Constitution desisted from defining
their contents. This is as it ought to be for a Constitution only lays down flexible
policies and principles which can bent to meet today's manifest needs and
tomorrow's unmanifested demands. Only a constitution strung with elasticity
can grow as a living constitution.
Thus, during the deliberations in the Constitutional Commission,
Commissioner Nolledo to define the phrase brushed aside a suggestion to
define the phrase "qualified Filipinos." He explained that present and
prospective "laws" will take care of the problem of its interpretation, viz:
xxx xxx xxx
THE PRESIDENT. What is the suggestion of Commissioner Rodrigo?
Is it to remove the word "QUALIFIED?"
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED
FILIPINOS" as against whom? As against aliens over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use
the word "QUALIFIED" because the existing laws or the prospective
laws will always lay down conditions under which business map be
done, for example, qualifications on capital, qualifications on the
setting up of other financial structures, et cetera.
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes.
 MR. RODRIGO. If we say, "PREFERENCE TO QUALIFIED
FILIPINOS," it can be understood as giving preference to qualified
Filipinos as against Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the intention of the
proponents. The committee has accepted the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce the
Filipino First policy is addressed to the State and not to Congress
alone. Hence, the word "laws" should not be understood as limited to
legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in
the exercise of their rule-making power. In the case at bar, the bidding
rules and regulations set forth the standards to measure the
qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong
Berhad. 39
Thus, we come to the critical issue of the degree of preference which GSIS
should have accorded petitioner, a qualified Filipino, over Renong Berhad, a
foreigner, in the purchase of the controlling shares of the Manila Hotel.
Petitioner claims that after losing the bid, this right of preference gives it a
second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the
premise that the second paragraph of section 10, Article XII of the Constitution
is pro-Pilipino but not anti-alien. It is pro-Filipino for it gives preference to
Filipinos. It is not, however, anti-alien per se for it does not absolutely bar
aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the
State is not prohibited from granting these rights, privileges and concessions
to foreigners if the act will promote the weal of the nation.
In implementing the policy articulated in section 10, Article XII of the
Constitution, the stellar task of our State policy-makers is to maintain a creative
tension between two desiderata first, the need to develop our economy and
patrimony with the help of foreigners if necessary, and, second, the need to
keep our economy controlled by Filipinos. Rightfully, the framers of the
Constitution did not define the degree of the right of preference to be given to
qualified Filipinos. They knew that for the right to serve the general welfare, it
must have a malleable content that can be adjusted by our policy-makers to
meet the changing needs of our people. In fine, the right of preference of
qualified Filipinos is to be determined by degree as time dictates and
circumstances warrant. The lesser the need for alien assistance, the greater
the degree of the right of preference can be given to Filipinos and vice verse.
Again, it should be stressed that the right and the duty to determine the degree
of this privilege at any given time is addressed to the entire State. While under
our constitutional scheme, the right primarily belongs to Congress as the
lawmaking department of our government, other branches of government, and
all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and
regulations defining the degree of this right of preference in cases where they
have to make grants involving the national economy and judicial duty. On the
other hand, our duty is to strike down acts of the state that violate the policy.
To date, Congress has not enacted a law defining the degree of the
preferential right. Consequently, we must turn to the rules and regulations of
on respondents Committee Privatization and GSIS to determine the degree of
preference that petitioner is entitled to as a qualified Filipino in the subject sale.
A tearless look at the rules and regulations will show that they are silent on the
degree of preferential right to be accorded qualified Filipino bidder. Despite
their silence, however, they cannot be read to mean that they do not grant any
degree of preference to petitioner for paragraph 2, section 10, Article XII of the
Constitution is deemed part of said rules and regulations. Pursuant to legal
hermeneutics which demand that we interpret rules to save them from
unconstitutionality, I submit that the right of preference of petitioner arises only
if it tied the bid of Benong Berhad. In that instance, all things stand equal, and
bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a
right to match the bid of Renong Berhad. Petitioner's submission must be
supported by the rules but even if we examine the rules inside-out .thousand
times, they can not justify the claimed right. Under the rules, the right to match
the highest bid arises only "if for any reason, the highest bidder cannot be
awarded block of shares . . ." No reason has arisen that will prevent the award
to Renong Berhad. It qualified as bidder. It complied with the procedure of
bidding. It tendered the highest bid. It was declared as the highest bidder by
the GSIS and the rules say this decision is final. It deserves the award as a
matter of right for the rules clearly did not give to the petitioner as a qualified
Filipino privilege to match the higher bid of a foreigner. What the rules did not
grant, petitioner cannot demand. Our symphaties may be with petitioner but
the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference
depend on galaxy of facts and factors whose determination belongs to the
province of the policy-making branches and agencies of the State. We are
duty-bound to respect that determination even if we differ with the wisdom of
their judgment. The right they grant may be little but we must uphold the grant
for as long as the right of preference is not denied. It is only when a State
action amounts to a denial of the right that the Court can come in and strike
down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid of
Renong Berhad. Petitioner was aware of the rules and regulations of the
bidding. It knew that the rules and regulations do not provide that a qualified
Filipino bidder can match the winning bid submitting an inferior bid. It knew
that the bid was open to foreigners and that foreigners qualified even during
the first bidding. Petitioner cannot be allowed to repudiate the rules which it
agreed to respect. It cannot be allowed to obey the rules when it wins and
disregard them when it loses. If sustained, petitioners' stance will wreak havoc
on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its
capacity to deliver essential services to our people. This is a duty that must be
discharged by Filipinos and foreigners participating in a bidding contest and
the rules are carefully written to attain this objective. Among others, bidders
are prequalified to insure their financial capability. The bidding is secret and
the bids are sealed to prevent collusion among the parties. This objective will
be undermined if we grant petitioner that privilege to know the winning bid and
a chance to match it. For plainly, a second chance to bid will encourage a
bidder not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary
nationalist Don Claro M. Recto has warned us that the greatest tragedy that
can befall a Filipino is to be an alien in his own land. The Constitution has
embodied Recto's counsel as a state policy. But while the Filipino First policy
requires that we incline to a Filipino, it does not demand that we wrong an
alien. Our policy makers can write laws and rules giving favored treatment to
the Filipino but we are not free to be unfair to a foreigner after writing the laws
and the rules. After the laws are written, they must be obeyed as written, by
Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to
foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.
PANGANIBAN, J., dissenting:
I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr.
Justice Reynato S. Puno, may I just add
1. The majority contends the Constitution should be interpreted to mean that,
after a bidding process is concluded, the losing Filipino bidder should be given
the right to equal the highest foreign bid, and thus to win. However, the
Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights . . .
covering the national economy and patrimony, the State shall give preference
to qualified Filipinos." The majority concedes that there is no law defining the
extent or degree of such preference. Specifically, no statute empowers a losing
Filipino bidder to increase his bid and equal that of the winning foreigner. In
the absence of such empowering law, the majority's strained interpretation, I
respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner
can win. Only in the Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted
and, viewed properly, gravely prejudicial to long-term Filipino interest. It
encourages other countries in the guise of reverse comity or worse,
unabashed retaliation to discriminate against us in their own jurisdictions by
authorizing their own nationals to similarly equal and defeat the higher bids of
Filipino enterprises solely, while on the other hand, allowing similar bids of
other foreigners to remain unchallenged by their nationals. The majority's
thesis will thus marginalize Filipinos as pariahs in the global marketplace with
absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out
unfairness, greed and isolation are self-defeating and in the long-term, self-
destructing.
The moral lesson here is simple: Do not do unto other what you dont want
other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino First"
policy of the Constitution, the constitutional preference for the "qualified
Filipinos" may be allowed only where all the bids are equal. In this manner, we
put the Filipino ahead without self-destructing him and without being unfair to
the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only when
the scores are tied. But not when the ballgame is over and the foreigner clearly
posted the highest score.
G.R. No. 160261 November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner,
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA
MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND
MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER
JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE
PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C.
TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA
RAZON-ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO
QUADRA, petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR
ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE
VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE
OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160263 November 10, 2003
ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioners-in-intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT,
AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF
THE HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003
FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE
OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS
PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES,
GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO
LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO
LIBANAN, EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN
GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO
NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA,
ALFREDO MARAON, JR., CECILIA CARREON-JALOSJOS, AGAPITO
AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE
CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA
JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE
GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY
III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO
BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO
MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS,
ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO
ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO
BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL
DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO,
GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO
LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM
MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA
SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT
REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI,
BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO
MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA
NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY
ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA
PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C.
LIGON, JOAN P. SERRANO AND GARY S. MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P.
NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE
HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M.
GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR
ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE
VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF
THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160310 November 10, 2003
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN
MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO
MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO
GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA,
GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR.,
RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN,
MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P.
GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER
CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE,
WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO
BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA,
SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO
LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA,
JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU
RESTRIVERA, MAX VILLAESTER, AND EDILBERTO
GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON.
SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED BY
HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX
FUENTEBELLA, ET AL., respondents.
x---------------------------------------------------------x
G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,
vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF
REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M.
DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents.
x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF
THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR.
MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND
MEMBER OF THE ENGINEERING PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83
HONORABLE MEMBERS OF THE HOUSE LED BY HON.
REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.
x---------------------------------------------------------x
G.R. No. 160343 November 10, 2003
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR
ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE
VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF
THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160360 November 10, 2003
CLARO B. FLORES, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND
THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE
PRESIDENT, respondents.
x---------------------------------------------------------x
G.R. No. 160365 November 10, 2003
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C.
PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D.
CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P.
NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B.
CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR
THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE
REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA,
THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN
DRILON, HOUSE REPRESENTATIVES FELIX FUENTEBELLA AND
GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES
OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO
SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST
SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE,
JR. respondents.
x---------------------------------------------------------x
G.R. No. 160370 November 10, 2003
FR. RANHILIO CALLANGAN AQUINO, petitioner,
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE
SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents.
x---------------------------------------------------------x
G.R. No. 160376 November 10, 2003
NILO A. MALANYAON, petitioner,
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN
REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF
IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR.
AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE
PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
VENECIA, respondents.
x---------------------------------------------------------x
G.R. No. 160392 November 10, 2003
VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE
VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE
PRESIDENT FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160397 November 10, 2003
IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF
JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS,
JR., petitioner.
x---------------------------------------------------------x
G.R. No. 160403 November 10, 2003
PHILIPPINE BAR ASSOCIATION, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR
PRESIDING OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE
PRESIDENT, HON. FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY
CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU
PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER,
ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF
CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC],
REPRSEENTED BY ATTY. MANUEL LEGASPI, CONFEDERATION OF
ACCREDITED MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC],
REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS
ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ,
FEDERACION INTERNACIONAL DE ABOGADAS [FIDA],
REPRESENTED BY THELMA L. JORDAN, CARLOS G. CO, PRESIENT
OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY
LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO
AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF
COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU
CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE
G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE,
REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE
PRESIDENT,respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how
passionate and seemingly irreconcilable it may appear to be, over the
determination by the independent branches of government of the nature,
scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at
times turbulent, dynamics of the relationship among these co-equal branches.
This Court is confronted with one such today involving the legislature and the
judiciary which has drawn legal luminaries to chart antipodal courses and not
a few of our countrymen to vent cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that the present
controversy subject of the instant petitions whether the filing of the second
impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the
House of Representatives falls within the one year bar provided in the
Constitution, and whether the resolution thereof is a political question has
resulted in a political crisis. Perhaps even more truth to the view that it was
brought upon by a political crisis of conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient
to address all the issues which this controversy spawns that this Court
unequivocally pronounces, at the first instance, that the feared resort to extra-
constitutional methods of resolving it is neither necessary nor legally
permissible. Both its resolution and protection of the public interest lie in
adherence to, not departure from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is
ever mindful of the essential truth that the inviolate doctrine of separation of
powers among the legislative, executive or judicial branches of government by
no means prescribes for absolute autonomy in the discharge by each of that
part of the governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has
been carefully calibrated by the Constitution to temper the official acts of each
of these three branches must be given effect without destroying their
indispensable co-equality.
Taken together, these two fundamental doctrines of republican government,
intended as they are to insure that governmental power is wielded only for the
good of the people, mandate a relationship of interdependence and
coordination among these branches where the delicate functions of enacting,
interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of
the people. Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the people, serve them
with utmost responsibility, integrity, loyalty, and efficiency, act with
patriotism and justice, and lead modest lives.
SECTION 2. The President, the Vice-President, the Members of the
Supreme Court, the Members of the Constitutional Commissions, and
the Ombudsman may be removed from office, on impeachment for,
and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public
trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment.
SECTION 3. (1) The House of Representatives shall have Following the above-quoted Section 8 of Article XI of the Constitution, the 12th
the exclusive power to initiate all cases of impeachment. Congress of the House of Representatives adopted and approved the Rules
of Procedure in Impeachment Proceedings (House Impeachment Rules) on
(2) A verified complaint for impeachment may be filed by any Member November 28, 2001, superseding the previous House Impeachment
of the House of Representatives or by any citizen upon a resolution of Rules1 approved by the 11th Congress. The relevant distinctions between
endorsement by any Member thereof, which shall be included in the these two Congresses' House Impeachment Rules are shown in the following
Order of Business within ten session days, and referred to the proper tabulation:
Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its
11TH CONGRESS RULES 12TH CONGRESS NEW RULES
report to the House within sixty session days from such referral,
together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days RULE II RULE V
from receipt thereof.
INITIATING IMPEACHMENT BAR AGAINST INITIATION OF
(3) A vote of at least one-third of all the Members of the House shall AGAINST THE SAME OFFICIAL
be necessary either to affirm a favorable resolution with the Articles of Section 2. Mode of Initiating Impeachment.
Impeachment of the Committee, or override its contrary resolution. Impeachment shall be initiated only by a verified Section 16. Impeachment Pr
The vote of each Member shall be recorded. complaint for impeachment filed by any Member cases where a Member of the H
of the House of Representatives or by any impeachment or a citizen files a ve
(4) In case the verified complaint or resolution of impeachment is filed citizen upon a resolution of endorsement by any a Member of the House through a r
by at least one-third of all the Members of the House, the same shall Member thereof or by a verified complaint or impeachable officer, impeachment
constitute the Articles of Impeachment, and trial by the Senate shall resolution of impeachment filed by at least one- deemed initiated on the day the C
forthwith proceed. third (1/3) of all the Members of the House. verified complaint and/or resolutio
may be, is sufficient in substance,
(5) No impeachment proceedings shall be initiated against the same overturn or affirm the finding of th
official more than once within a period of one year. complaint and/or resolution, as th
substance.
(6) The Senate shall have the sole power to try and decide all cases
of impeachment. When sitting for that purpose, the Senators shall be In cases where a verified complain
on oath or affirmation. When the President of the Philippines is on trial, filed or endorsed, as the case may
the Chief Justice of the Supreme Court shall preside, but shall not Members of the House, impeac
vote. No person shall be convicted without the concurrence of two- initiated at the time of the filin
thirds of all the Members of the Senate. resolution of impeachment with

(7) Judgment in cases of impeachment shall not extend further than

removal from office and disqualification to hold any office under the
Republic of the Philippines, but the party convicted shall nevertheless RULE V Section 17. Bar Against Initiation
be liable and subject to prosecution, trial, and punishment according Within a period of one (1) year from
to law. BAR AGAINST IMPEACHMENT are deemed initiated as provided in
proceedings, as such, can be initia
Section 14. Scope of Bar. No impeachment in the original; emphasis and under
(8) The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section. (Emphasis and proceedings shall be initiated against the same
underscoring supplied) official more than once within the period of one
(1) year.
On July 22, 2002, the House of Representatives adopted a
Resolution,2 sponsored by Representative Felix William D. Fuentebella, which
directed the Committee on Justice "to conduct an investigation, in aid of
legislation, on the manner of disbursements and expenditures by the Chief
Justice of the Supreme Court of the Judiciary Development Fund (JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment
complaint4 (first impeachment complaint) against Chief Justice Hilario G.
Davide Jr. and seven Associate Justices5 of this Court for "culpable violation
of the Constitution, betrayal of the public trust and other high crimes." 6 The
complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B.
Zamora and Didagen Piang Dilangalen,7 and was referred to the House
Committee on Justice on August 5, 20038 in accordance with Section 3(2) of
Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon a
resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and referred
to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members,
shall submit its report to the House within sixty session days from such
referral, together with the corresponding resolution. The resolution
shall be calendared for consideration by the House within ten session
days from receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the first
impeachment complaint was "sufficient in form,"9 but voted to dismiss the
same on October 22, 2003 for being insufficient in substance.10 To date, the
Committee Report to this effect has not yet been sent to the House in plenary
in accordance with the said Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first
complaint or on October 23, 2003, a day after the House Committee on Justice
voted to dismiss it, the second impeachment complaint11 was filed with the
Secretary General of the House12 by Representatives Gilberto C. Teodoro, Jr.
(First District, Tarlac) and Felix William B. Fuentebella (Third District,
Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the
alleged results of the legislative inquiry initiated by above-mentioned House
Resolution. This second impeachment complaint was accompanied by a
"Resolution of Endorsement/Impeachment" signed by at least one-third (1/3)
of all the Members of the House of Representatives.13
Thus arose the instant petitions against the House of Representatives, et.
al., most of which petitions contend that the filing of the second impeachment
complaint is unconstitutional as it violates the provision of Section 5 of Article
XI of the Constitution that "[n]o impeachment proceedings shall be initiated
against the same official more than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he
has a duty as a member of the Integrated Bar of the Philippines to use all
available legal remedies to stop an unconstitutional impeachment, that the
issues raised in his petition for Certiorari, Prohibition and Mandamus are of
transcendental importance, and that he "himself was a victim of the capricious
and arbitrary changes in the Rules of Procedure in Impeachment Proceedings
introduced by the 12th Congress,"14 posits that his right to bring an
impeachment complaint against then Ombudsman Aniano Desierto had been
violated due to the capricious and arbitrary changes in the House
Impeachment Rules adopted and approved on November 28, 2001 by the
House of Representatives and prays that (1) Rule V, Sections 16 and 17 and
Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this
Court issue a writ of mandamus directing respondents House of
Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of
the Constitution, to return the second impeachment complaint and/or strike it
off the records of the House of Representatives, and to promulgate rules which
are consistent with the Constitution; and (3) this Court permanently enjoin
respondent House of Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and
taxpayers, alleging that the issues of the case are of transcendental
importance, pray, in their petition for Certiorari/Prohibition, the issuance of a
writ "perpetually" prohibiting respondent House of Representatives from filing
any Articles of Impeachment against the Chief Justice with the Senate; and for
the issuance of a writ "perpetually" prohibiting respondents Senate and Senate
President Franklin Drilon from accepting any Articles of Impeachment against
the Chief Justice or, in the event that the Senate has accepted the same, from
proceeding with the impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang,
as citizens, taxpayers, lawyers and members of the Integrated Bar of the
Philippines, alleging that their petition for Prohibition involves public interest as
it involves the use of public funds necessary to conduct the impeachment trial
on the second impeachment complaint, pray for the issuance of a writ of
prohibition enjoining Congress from conducting further proceedings on said
second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has
recognized that he has locus standi to bring petitions of this nature in the cases
of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay Development
Corporation,16 prays in his petition for Injunction that the second impeachment
complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and
members of the legal profession, pray in their petition for Prohibition for an
order prohibiting respondent House of Representatives from drafting,
adopting, approving and transmitting to the Senate the second impeachment
complaint, and respondents De Venecia and Nazareno from transmitting the
Articles of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and
Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House of
Representatives, they have a legal interest in ensuring that only constitutional
impeachment proceedings are initiated, pray in their petition for
Certiorari/Prohibition that the second impeachment complaint and any act
proceeding therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they
have a right to be protected against all forms of senseless spending of
taxpayers' money and that they have an obligation to protect the Supreme
Court, the Chief Justice, and the integrity of the Judiciary, allege in their petition
for Certiorari and Prohibition that it is instituted as "a class suit" and pray that
(1) the House Resolution endorsing the second impeachment complaint as
well as all issuances emanating therefrom be declared null and void; and (2)
this Court enjoin the Senate and the Senate President from taking cognizance
of, hearing, trying and deciding the second impeachment complaint, and issue
a writ of prohibition commanding the Senate, its prosecutors and agents to
desist from conducting any proceedings or to act on the impeachment
complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members
are citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen,
taxpayer and a member of the Philippine Bar, both allege in their petition,
which does not state what its nature is, that the filing of the second
impeachment complaint involves paramount public interest and pray that
Sections 16 and 17 of the House Impeachment Rules and the second
impeachment complaint/Articles of Impeachment be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a
member of the Philippine Bar Association and of the Integrated Bar of the
Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in
their petition for the issuance of a Temporary Restraining Order and
Permanent Injunction to enjoin the House of Representatives from proceeding
with the second impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that
it is mandated by the Code of Professional Responsibility to uphold the
Constitution, prays in its petition for Certiorari and Prohibition that Sections 16
and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House
Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second
impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition
for Certiorari and Prohibition that the House Impeachment Rules be declared
unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al.,
in their petition for Prohibition and Injunction which they claim is a class suit
filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed in behalf
of succeeding generations of Filipinos, pray for the issuance of a writ
prohibiting respondents House of Representatives and the Senate from
conducting further proceedings on the second impeachment complaint and
that this Court declare as unconstitutional the second impeachment complaint
and the acts of respondent House of Representatives in interfering with the
fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino,
alleging that the issues in his petition for Prohibition are of national and
transcendental significance and that as an official of the Philippine Judicial
Academy, he has a direct and substantial interest in the unhampered operation
of the Supreme Court and its officials in discharging their duties in accordance
with the Constitution, prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of Impeachment to the Senate
and the Senate from receiving the same or giving the impeachment complaint
due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his
petition for Prohibition that respondents Fuentebella and Teodoro at the time
they filed the second impeachment complaint, were "absolutely without any
legal power to do so, as they acted without jurisdiction as far as the Articles of
Impeachment assail the alleged abuse of powers of the Chief Justice to
disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L.
Hofilea, alleging that as professors of law they have an abiding interest in the
subject matter of their petition for Certiorari and Prohibition as it pertains to a
constitutional issue "which they are trying to inculcate in the minds of their
students," pray that the House of Representatives be enjoined from endorsing
and the Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging
his locus standi, but alleging that the second impeachment complaint is
founded on the issue of whether or not the Judicial Development Fund (JDF)
was spent in accordance with law and that the House of Representatives does
not have exclusive jurisdiction in the examination and audit thereof, prays in
his petition "To Declare Complaint Null and Void for Lack of Cause of Action
and Jurisdiction" that the second impeachment complaint be declared null and
void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the
issues raised in the filing of the second impeachment complaint involve
matters of transcendental importance, prays in its petition for
Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent House
of Representatives be prohibited from transmitting the Articles of Impeachment
to the Senate; and (3) respondent Senate be prohibited from accepting the
Articles of Impeachment and from conducting any proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and
taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second
impeachment complaint as well as the resolution of endorsement and
impeachment by the respondent House of Representatives be declared null
and void and (2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the Chief
Justice or, in the event that they have accepted the same, that they be
prohibited from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the
first three of the eighteen which were filed before this Court, 18 prayed for the
issuance of a Temporary Restraining Order and/or preliminary injunction to
prevent the House of Representatives from transmitting the Articles of
Impeachment arising from the second impeachment complaint to the Senate.
Petition bearing docket number G.R. No. 160261 likewise prayed for the
declaration of the November 28, 2001 House Impeachment Rules as null and
void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295,
which were filed on October 28, 2003, sought similar relief. In addition, petition
bearing docket number G.R. No. 160292 alleged that House Resolution No.
260 (calling for a legislative inquiry into the administration by the Chief Justice
of the JDF) infringes on the constitutional doctrine of separation of powers and
is a direct violation of the constitutional principle of fiscal autonomy of the
judiciary.
On October 28, 2003, during the plenary session of the House of
Representatives, a motion was put forth that the second impeachment
complaint be formally transmitted to the Senate, but it was not carried because
the House of Representatives adjourned for lack of quorum,19 and as reflected
above, to date, the Articles of Impeachment have yet to be forwarded to the
Senate.
Before acting on the petitions with prayers for temporary restraining order
and/or writ of preliminary injunction which were filed on or before October 28,
2003, Justices Puno and Vitug offered to recuse themselves, but the Court
rejected their offer. Justice Panganiban inhibited himself, but the Court
directed him to participate.
Without necessarily giving the petitions due course, this Court in its Resolution
of October 28, 2003, resolved to (a) consolidate the petitions; (b) require
respondent House of Representatives and the Senate, as well as the Solicitor
General, to comment on the petitions not later than 4:30 p.m. of November 3,
2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00
a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In
addition, this Court called on petitioners and respondents to maintain the
status quo, enjoining all the parties and others acting for and in their behalf to
refrain from committing acts that would render the petitions moot.
Also on October 28, 2003, when respondent House of Representatives
through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way of
special appearance, submitted a Manifestation asserting that this Court has
no jurisdiction to hear, much less prohibit or enjoin the House of
Representatives, which is an independent and co-equal branch of government
under the Constitution, from the performance of its constitutionally mandated
duty to initiate impeachment cases. On even date, Senator Aquilino Q.
Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex Abudante
Cautela)21 and Comment, praying that "the consolidated petitions be
dismissed for lack of jurisdiction of the Court over the issues affecting the
impeachment proceedings and that the sole power, authority and jurisdiction
of the Senate as the impeachment court to try and decide impeachment cases,
including the one where the Chief Justice is the respondent, be recognized
and upheld pursuant to the provisions of Article XI of the Constitution."22
Acting on the other petitions which were subsequently filed, this Court resolved
to (a) consolidate them with the earlier consolidated petitions; (b) require
respondents to file their comment not later than 4:30 p.m. of November 3,
2003; and (c) include them for oral arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President
Franklin M. Drilon, filed a Manifestation stating that insofar as it is concerned,
the petitions are plainly premature and have no basis in law or in fact, adding
that as of the time of the filing of the petitions, no justiciable issue was
presented before it since (1) its constitutional duty to constitute itself as an
impeachment court commences only upon its receipt of the Articles of
Impeachment, which it had not, and (2) the principal issues raised by the
petitions pertain exclusively to the proceedings in the House of
Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and
160295, questioning the status quo Resolution issued by this Court on October
28, 2003 on the ground that it would unnecessarily put Congress and this Court
in a "constitutional deadlock" and praying for the dismissal of all the petitions
as the matter in question is not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino
Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene and
to Admit the Herein Incorporated Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No.
160261. On November 5, 2003, World War II Veterans Legionnaires of the
Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene"
in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.
The motions for intervention were granted and both Senator Pimentel's
Comment and Attorneys Macalintal and Quadra's Petition in Intervention were
admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and
the arguments of petitioners, intervenors Senator Pimentel and Attorney
Makalintal, and Solicitor General Alfredo Benipayo on the principal issues
outlined in an Advisory issued by this Court on November 3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be
invoked; who can invoke it; on what issues and at what time; and
whether it should be exercised by this Court at this time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of
impeachment;
e) Senate's "sole" power to try and decide all cases of
impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-
vis Section 3(5) of Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising
from the instant petitions as well as the myriad arguments and opinions
presented for and against the grant of the reliefs prayed for, this Court has
sifted and determined them to be as follows: (1) the threshold and novel issue
of whether or not the power of judicial review extends to those arising from
impeachment proceedings; (2) whether or not the essential pre-requisites for
the exercise of the power of judicial review have been fulfilled; and (3) the
substantive issues yet remaining. These matters shall now be discussed in
seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of
judicial review to determine the validity of the second impeachment complaint.
This Court's power of judicial review is conferred on the judicial branch of the
government in Section 1, Article VIII of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon by
Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral
Commission23 after the effectivity of the 1935 Constitution whose provisions,
unlike the present Constitution, did not contain the present provision in Article
VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel
discoursed:
x x x In times of social disquietude or political excitement, the great
landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department is
the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.
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 checks 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 a 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 of 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 sterile conclusions
unrelated to actualities. Narrowed as its function 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.24(Italics in the original;
emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to "determine the
proper allocation of powers" of the different branches of government and "to
direct the course of government along constitutional channels" is inherent in
all courts25 as a necessary consequence of the judicial power itself, which
is "the power of the court to settle actual controversies involving rights which
are legally demandable and enforceable."26
Thus, even in the United States where the power of judicial review is not
explicitly conferred upon the courts by its Constitution, such power has "been
set at rest by popular acquiescence for a period of more than one and a half
centuries." To be sure, it was in the 1803 leading case of Marbury v.
Madison27 that the power of judicial review was first articulated by Chief Justice
Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring what
shall be the supreme law of the land, the constitution itself is first
mentioned; and not the laws of the United States generally, but those
only which shall be made in pursuance of the constitution, have that
rank.
Thus, the particular phraseology of the constitution of the United
States confirms and strengthens the principle, supposed to be
essential to all written constitutions, that a law repugnant to the
constitution is void; and that courts, as well as other
departments, are bound by that instrument.28(Italics in the original;
emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in
the 1935 Constitution, the power of judicial review was exercised by our courts
to invalidate constitutionally infirm acts.29 And as pointed out by noted political
law professor and former Supreme Court Justice Vicente V. Mendoza, 30 the
executive and legislative branches of our government in fact effectively
acknowledged this power of judicial review in Article 7 of the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, or custom
or practice to the contrary.
When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be
valid only when they are not contrary to the laws or the
Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is indeed an
integral component of the delicate system of checks and balances which,
together with the corollary principle of separation of powers, forms the bedrock
of our republican form of government and insures that its vast powers are
utilized only for the benefit of the people for which it serves.
The separation of powers is a fundamental principle in our
system of government. It obtains not through express provision but
by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it does not follow from the
fact that the three powers are to be kept separate and distinct that the
Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination
in the workings of the various departments of the government. x
x x And the judiciary in turn, with the Supreme Court as the final
arbiter, effectively checks the other departments in the exercise
of its power to determine the law, and hence to declare executive
and legislative acts void if violative of the
Constitution.32 (Emphasis and underscoring supplied)
In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, "x x x judicial review is essential for the maintenance and
enforcement of the separation of powers and the balancing of powers among
the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them." 33 To
him, "[j]udicial review is the chief, indeed the only, medium of participation or
instrument of intervention of the judiciary in that balancing operation."34
To ensure the potency of the power of judicial review to curb grave abuse of
discretion by "any branch or instrumentalities of government," the afore-
quoted Section 1, Article VIII of the Constitution engraves, for the first time into
its history, into block letter law the so-called "expanded certiorari jurisdiction"
of this Court, the nature of and rationale for which are mirrored in the following
excerpt from the sponsorship speech of its proponent, former Chief Justice
Constitutional Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions. It
says:
The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first
and explain.
Judicial power includes the duty of courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of
our experience during martial law. As a matter of fact, it has some
antecedents in the past, but the role of the judiciary during the
deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then
had no legal defense at all, the solicitor general set up the
defense of political questions and got away with it. As a
consequence, certain principles concerning particularly the writ of
habeas corpus, that is, the authority of courts to order the release of
political detainees, and other matters related to the operation and
effect of martial law failed because the government set up the defense
of political question. And the Supreme Court said: "Well, since it is
political, we have no authority to pass upon it." The Committee on
the Judiciary feels that this was not a proper solution of the
questions involved. It did not merely request an encroachment
 upon the rights of the people, but it, in effect, encouraged further
violations thereof during the martial law regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power of
the agencies and offices of the government as well as those of
its officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means
that the courts cannot hereafter evade the duty to settle matters
of this nature, by claiming that such matters constitute a political
question.35 (Italics in the original; emphasis and underscoring
supplied)
To determine the merits of the issues raised in the instant petitions, this Court
must necessarily turn to the Constitution itself which employs the well-settled
principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the Constitution
must be given their ordinary meaning except where technical terms are
employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure
Administration,36 this Court, speaking through Chief Justice Enrique Fernando,
declared:
We look to the language of the document itself in our search for
its meaning. We do not of course stop there, but that is where we
begin. It is to be assumed that the words in which constitutional
provisions are couched express the objective sought to be
attained. They are to be given theirordinary meaning except
where technical terms are employed in which case the
significance thus attached to them prevails. As the Constitution
is not primarily a lawyer's document, it being essential for the rule of
law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say.
Thus these are the cases where the need for construction is reduced
to a minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the
Constitution should be interpreted in accordance with the intent of its framers.
And so did this Court apply this principle in Civil Liberties Union v. Executive
Secretary38 in this wise:
A foolproof yardstick in constitutional construction is the intention
underlying the provision under consideration. Thus, it has been held
that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and
circumstances under which the Constitution was framed. The object
is to ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the
whole as to make the words consonant to that reason and
calculated to effect that purpose.39 (Emphasis and underscoring
supplied)
As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking
through Madame Justice Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the
fundamental principle of constitutional construction that the
intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the realization of the
purpose of the framers and of the people in the adoption of the
Constitution. It may also be safely assumed that the people in
ratifying the Constitution were guided mainly by the explanation
offered by the framers.41 (Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as
a whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief Justice
Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not
have dedicated a provision of our Constitution merely for the
benefit of one person without considering that it could also affect
others. When they adopted subsection 2, they permitted, if not
willed, that said provision should function to the full extent of its
substance and its terms, not by itself alone, but in conjunction
 with all other provisions of that great document. 43 (Emphasis and
underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court
affirmed that:
It is a well-established rule in constitutional construction that no
one provision of the Constitution is to be separated from all the
others, to be considered alone, but that all the provisions bearing
upon a particular subject are to be brought into view and to be
so interpreted as to effectuate the great purposes of the
instrument. Sections bearing on a particular subject should be
considered and interpreted together as to effectuate the whole
purpose of the Constitution and one section is not to be allowed
to defeat another, if by any reasonable construction, the two can
be made to stand together.
In other words, the court must harmonize them, if practicable, and
must lean in favor of a construction which will render every word
operative, rather than one which may make the words idle and
nugatory.45(Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort to
other aids is available. In still the same case of Civil Liberties Union v.
Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the
reason and purpose of the resulting Constitution, resort thereto may
be had only when other guides fail as said proceedings are
powerless to vary the terms of the Constitution when the
meaning is clear. Debates in the constitutional convention "are of
value as showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no light as to
the views of the large majority who did not talk, much less of the mass
of our fellow citizens whose votes at the polls gave that instrument the
force of fundamental law. We think it safer to construe the
constitution from what appears upon its face." The proper
interpretation therefore depends more on how it was understood
by the people adopting it than in the framers's understanding
thereof.46 (Emphasis and underscoring supplied)
It is in the context of the foregoing backdrop of constitutional refinement and
jurisprudential application of the power of judicial review that respondents
Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel
argument that the Constitution has excluded impeachment proceedings from
the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et. al. that
impeachment is a political action which cannot assume a judicial character.
Hence, any question, issue or incident arising at any stage of the impeachment
proceeding is beyond the reach of judicial review. 47
For his part, intervenor Senator Pimentel contends that the Senate's "sole
power to try" impeachment cases48 (1) entirely excludes the application of
judicial review over it; and (2) necessarily includes the Senate's power to
determine constitutional questions relative to impeachment proceedings. 49
In furthering their arguments on the proposition that impeachment proceedings
are outside the scope of judicial review, respondents Speaker De Venecia, et.
al. and intervenor Senator Pimentel rely heavily on American authorities,
principally the majority opinion in the case of Nixon v. United States.50 Thus,
they contend that the exercise of judicial review over impeachment
proceedings is inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to try crimes; it
disturbs the system of checks and balances, under which impeachment is the
only legislative check on the judiciary; and it would create a lack of finality and
difficulty in fashioning relief.51 Respondents likewise point to deliberations on
the US Constitution to show the intent to isolate judicial power of review in
cases of impeachment.
Respondents' and intervenors' reliance upon American jurisprudence, the
American Constitution and American authorities cannot be credited to support
the proposition that the Senate's "sole power to try and decide impeachment
cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually
demonstrable constitutional commitment of all issues pertaining to
impeachment to the legislature, to the total exclusion of the power of judicial
review to check and restrain any grave abuse of the impeachment process.
Nor can it reasonably support the interpretation that it necessarily confers upon
the Senate the inherently judicial power to determine constitutional questions
incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the American
Constitution, are of dubious application for these are no longer controlling
within our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned. As held in the case of Garcia vs.
COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly applicable
because they have been dictated by different constitutional settings and
needs."53 Indeed, although the Philippine Constitution can trace its origins to
that of the United States, their paths of development have long since diverged.
In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."
The major difference between the judicial power of the Philippine Supreme
Court and that of the U.S. Supreme Court is that while the power of judicial
review is only impliedly granted to the U.S. Supreme Court and is discretionary
in nature, that granted to the Philippine Supreme Court and lower courts, as
expressly provided for in the Constitution, is not just a power but also a duty,
and it was given an expanded definition to include the power to correct any
grave abuse of discretion on the part of any government branch or
instrumentality.
There are also glaring distinctions between the U.S. Constitution and the
Philippine Constitution with respect to the power of the House of
Representatives over impeachment proceedings. While the U.S. Constitution
bestows sole power of impeachment to the House of Representatives without
limitation,54 our Constitution, though vesting in the House of Representatives
the exclusive power to initiate impeachment cases,55 provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4)
and (5), Article XI thereof. These limitations include the manner of filing,
required vote to impeach, and the one year bar on the impeachment of one
and the same official.
Respondents are also of the view that judicial review of impeachments
undermines their finality and may also lead to conflicts between Congress and
the judiciary. Thus, they call upon this Court to exercise judicial statesmanship
on the principle that "whenever possible, the Court should defer to the
judgment of the people expressed legislatively, recognizing full well the perils
of judicial willfulness and pride."56
But did not the people also express their will when they instituted the above-
mentioned safeguards in the Constitution? This shows that the Constitution
did not intend to leave the matter of impeachment to the sole discretion of
Congress. Instead, it provided for certain well-defined limits, or in the language
of Baker v. Carr,57"judicially discoverable standards" for determining the
validity of the exercise of such discretion, through the power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by
respondents in support of the argument that the impeachment power is beyond
the scope of judicial review, are not in point. These cases concern the denial
of petitions for writs of mandamus to compel the legislature to perform non-
ministerial acts, and do not concern the exercise of the power of judicial review.
There is indeed a plethora of cases in which this Court exercised the power of
judicial review over congressional action. Thus, in Santiago v. Guingona,
Jr.,60 this Court ruled that it is well within the power and jurisdiction of the Court
to inquire whether the Senate or its officials committed a violation of the
Constitution or grave abuse of discretion in the exercise of their functions and
prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the
Philippine Senate on the ground that it contravened the Constitution, it held
that the petition raises a justiciable controversy and that when an action of the
legislative branch is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the
dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution
of the House of Representatives withdrawing the nomination, and rescinding
the election, of a congressman as a member of the House Electoral Tribunal
for being violative of Section 17, Article VI of the Constitution. In Coseteng v.
Mitra,63 it held that the resolution of whether the House representation in the
Commission on Appointments was based on proportional representation of the
political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the House
of Representatives in removing the petitioner from the Commission on
Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held that
although under the Constitution, the legislative power is vested exclusively in
Congress, this does not detract from the power of the courts to pass upon the
constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it
ruled that confirmation by the National Assembly of the election of any
member, irrespective of whether his election is contested, is not essential
before such member-elect may discharge the duties and enjoy the privileges
of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the exercise
of judicial review over impeachment proceedings would upset the system of
checks and balances. Verily, the Constitution is to be interpreted as a whole
and "one section is not to be allowed to defeat another." 67 Both are integral
components of the calibrated system of independence and interdependence
that insures that no branch of government act beyond the powers assigned to
it by the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of
judicial review, like almost all powers conferred by the Constitution, is subject
to several limitations, namely: (1) an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the act must have
"standing" to challenge; he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of
its enforcement; (3) the question of constitutionality must be raised at the
earliest possible opportunity; and (4) the issue of constitutionality must be the
very lis mota of the case.
 x x x 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 sterile conclusions
unrelated to actualities. Narrowed as its function 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.68 (Italics in the original)
Standing
Locus standi or legal standing or has been defined as a personal and
substantial interest in the case such that the party has sustained or will sustain
direct injury as a result of the governmental act that is being challenged. The
gist of the question of standing is whether a party alleges such personal stake
in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.69
Intervenor Soriano, in praying for the dismissal of the petitions, contends that
petitioners do not have standing since only the Chief Justice has sustained
and will sustain direct personal injury. Amicus curiae former Justice Minister
and Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that petitioners have
standing since this Court had, in the past, accorded standing to taxpayers,
voters, concerned citizens, legislators in cases involving paramount public
interest70 and transcendental importance,71 and that procedural matters are
subordinate to the need to determine whether or not the other branches of the
government have kept themselves within the limits of the Constitution and the
laws and that they have not abused the discretion given to them. 72 Amicus
curiae Dean Raul Pangalangan of the U.P. College of Law is of the same
opinion, citing transcendental importance and the well-entrenched rule
exception that, when the real party in interest is unable to vindicate his rights
by seeking the same remedies, as in the case of the Chief Justice who, for
ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts
will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and
the rule on standing, for the former is a concept of civil procedure 73 while the
latter has constitutional underpinnings.74 In view of the arguments set forth
regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan,
Inc. v. Morato75 to clarify what is meant by locus standi and to distinguish it
from real party-in-interest.
The difference between the rule on standing and real party in interest
has been noted by authorities thus: "It is important to note . . . that
standing because of its constitutional and public policy underpinnings,
is very different from questions relating to whether a particular plaintiff
is the real party in interest or has capacity to sue. Although all three
requirements are directed towards ensuring that only certain parties
can maintain an action, standing restrictions require a partial
consideration of the merits, as well as broader policy concerns relating
to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in some
cases suits are brought not by parties who have been personally
injured by the operation of a law or by official action taken, but by
concerned citizens, taxpayers or voters who actually sue in the public
interest. Hence the question in standing is whether such parties have
"alleged such a personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of
difficult constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is whether
he is "the party who would be benefited or injured by the judgment, or
the 'party entitled to the avails of the suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured by the alleged
unconstitutional acts of the House of Representatives, none of the petitioners
before us asserts a violation of the personal rights of the Chief Justice. On the
contrary, they invariably invoke the vindication of their own rights as
taxpayers; members of Congress; citizens, individually or in a class suit; and
members of the bar and of the legal profession which were supposedly
violated by the alleged unconstitutional acts of the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and legislators
when specific requirements have been met have been given standing by this
Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about
to be subjected to some burdens or penalties by reason of the statute or act
complained of.77 In fine, when the proceeding involves the assertion of a public
right,78 the mere fact that he is a citizen satisfies the requirement of personal
interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that public
funds are illegally disbursed, or that public money is being deflected to any
improper purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.79 Before he can invoke the
power of judicial review, however, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure of money raised by
taxation and that he would sustain a direct injury as a result of the enforcement
of the questioned statute or contract. It is not sufficient that he has merely a
general interest common to all members of the public.80
At all events, courts are vested with discretion as to whether or not a taxpayer's
suit should be entertained.81 This Court opts to grant standing to most of the
petitioners, given their allegation that any impending transmittal to the Senate
of the Articles of Impeachment and the ensuing trial of the Chief Justice will
necessarily involve the expenditure of public funds.
As for a legislator, he is allowed to sue to question the validity of any official
action which he claims infringes his prerogatives as a legislator. 82 Indeed, a
member of the House of Representatives has standing to maintain inviolate
the prerogatives, powers and privileges vested by the Constitution in his
office.83
While an association has legal personality to represent its
members,84 especially when it is composed of substantial taxpayers and the
outcome will affect their vital interests,85 the mere invocation by the Integrated
Bar of the Philippines or any member of the legal profession of the duty to
preserve the rule of law and nothing more, although undoubtedly true, does
not suffice to clothe it with standing. Its interest is too general. It is shared by
other groups and the whole citizenry. However, a reading of the petitions
shows that it has advanced constitutional issues which deserve the attention
of this Court in view of their seriousness, novelty and weight as
precedents.86 It, therefore, behooves this Court to relax the rules on standing
and to resolve the issues presented by it.
In the same vein, when dealing with class suits filed in behalf of all citizens,
persons intervening must be sufficiently numerous to fully protect the interests
of all concerned87 to enable the court to deal properly with all interests involved
in the suit,88 for a judgment in a class suit, whether favorable or unfavorable to
the class, is, under the res judicata principle, binding on all members of the
class whether or not they were before the court.89Where it clearly appears that
not all interests can be sufficiently represented as shown by the divergent
issues raised in the numerous petitions before this Court, G.R. No. 160365 as
a class suit ought to fail. Since petitionersadditionally allege standing as
citizens and taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground
of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No.
160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the following
instructive determinants formulated by former Supreme Court Justice
Florentino P. Feliciano are instructive: (1) the character of the funds or other
assets involved in the case; (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a
more direct and specific interest in raising the questions being
raised.90 Applying these determinants, this Court is satisfied that the issues
raised herein are indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people, as when the issues raised are of
paramount importance to the public.91 Such liberality does not, however, mean
that the requirement that a party should have an interest in the matter is totally
eliminated. A party must, at the very least, still plead the existence of such
interest, it not being one of which courts can take judicial notice. In petitioner
Vallejos' case, he failed to allege any interest in the case. He does not thus
have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of
Court requires an intervenor to possess a legal interest in the matter in
litigation, or in the success of either of the parties, or an interest against both,
or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof. While
intervention is not a matter of right, it may be permitted by the courts when the
applicant shows facts which satisfy the requirements of the law authorizing
intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case,
they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since, save
for one additional issue, they raise the same issues and the same standing,
and no objection on the part of petitioners Candelaria, et. al. has been
interposed, this Court as earlier stated, granted the Motion for Leave of Court
to Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking
their right as citizens to intervene, alleging that "they will suffer if this insidious
scheme of the minority members of the House of Representatives is
successful," this Court found the requisites for intervention had been complied
with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262,
160263, 160277, 160292, 160295, and 160310 were of transcendental
importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a
"Petition-in-Intervention with Leave to Intervene" to raise the additional issue
of whether or not the second impeachment complaint against the Chief Justice
is valid and based on any of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines,
Inc. possess a legal interest in the matter in litigation the respective motions to
intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the
limited purpose of making of record and arguing a point of view that differs with
Senate President Drilon's. He alleges that submitting to this Court's jurisdiction
as the Senate President does will undermine the independence of the Senate
which will sit as an impeachment court once the Articles of Impeachment are
transmitted to it from the House of Representatives. Clearly, Senator Pimentel
possesses a legal interest in the matter in litigation, he being a member of
Congress against which the herein petitions are directed. For this reason, and
to fully ventilate all substantial issues relating to the matter at hand, his Motion
to Intervene was granted and he was, as earlier stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied
for, while he asserts an interest as a taxpayer, he failed to meet the standing
requirement for bringing taxpayer's suits as set forth in Dumlao v.
Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and spent in
violation of specific constitutional protection against abuses of
legislative power," or that there is a misapplication of such funds by
respondent COMELEC, or that public money is being deflected to any
improper purpose. Neither do petitioners seek to restrain respondent
from wasting public funds through the enforcement of an invalid or
unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that
the act of petitioners will result in illegal disbursement of public funds or in
public money being deflected to any improper purpose. Additionally, his mere
interest as a member of the Bar does not suffice to clothe him with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that
for a case to be considered ripe for adjudication, "it is a prerequisite that
something had by then been accomplished or performed by either branch
before a court may come into the picture."96 Only then may the courts pass on
the validity of what was done, if and when the latter is challenged in an
appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of
the second impeachment complaint against the Chief Justice in accordance
with the House Impeachment Rules adopted by the 12th Congress, the
constitutionality of which is questioned. The questioned acts having been
carried out, i.e., the second impeachment complaint had been filed with the
House of Representatives and the 2001 Rules have already been already
promulgated and enforced, the prerequisite that the alleged unconstitutional
act should be accomplished and performed before suit, as Tan v.
Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions
are premature. Amicus curiaeformer Senate President Jovito R. Salonga
opines that there may be no urgent need for this Court to render a decision at
this time, it being the final arbiter on questions of constitutionality anyway. He
thus recommends that all remedies in the House and Senate should first be
exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law
who suggests to this Court to take judicial notice of on-going attempts to
encourage signatories to the second impeachment complaint to withdraw their
signatures and opines that the House Impeachment Rules provide for an
opportunity for members to raise constitutional questions themselves when the
Articles of Impeachment are presented on a motion to transmit to the same to
the Senate. The dean maintains that even assuming that the Articles are
transmitted to the Senate, the Chief Justice can raise the issue of their
constitutional infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the
Representatives of their signatures would not, by itself, cure the House
Impeachment Rules of their constitutional infirmity. Neither would such a
withdrawal, by itself, obliterate the questioned second impeachment complaint
since it would only place it under the ambit of Sections 3(2) and (3) of Article
XI of the Constitution97 and, therefore, petitioners would continue to suffer their
injuries.
Second and most importantly, the futility of seeking remedies from either or
both Houses of Congress before coming to this Court is shown by the fact that,
as previously discussed, neither the House of Representatives nor the Senate
is clothed with the power to rule with definitiveness on the issue of
constitutionality, whether concerning impeachment proceedings or otherwise,
as said power is exclusively vested in the judiciary by the earlier quoted
Section I, Article VIII of the Constitution. Remedy cannot be sought from a
body which is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion
defined the term "political question," viz:
[T]he term "political question" connotes, in legal parlance, what it
means in ordinary parlance, namely, a question of policy. In other
words, in the language of Corpus Juris Secundum, 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.99 (Italics in the original)
Prior to the 1973 Constitution, without consistency and seemingly without any
rhyme or reason, this Court vacillated on its stance of taking cognizance of
cases which involved political questions. In some cases, this Court hid behind
the cover of the political question doctrine and refused to exercise its power of
judicial review.100 In other cases, however, despite the seeming political nature
of the therein issues involved, this Court assumed jurisdiction whenever it
found constitutionally imposed limits on powers or functions conferred upon
political bodies.101 Even in the landmark 1988 case of Javellana v. Executive
Secretary102 which raised the issue of whether the 1973 Constitution was
ratified, hence, in force, this Court shunted the political question doctrine and
took cognizance thereof. Ratification by the people of a Constitution is a
political question, it being a question decided by the people in their sovereign
capacity.
The frequency with which this Court invoked the political question doctrine to
refuse to take jurisdiction over certain cases during the Marcos regime
motivated Chief Justice Concepcion, when he became a Constitutional
Commissioner, to clarify this Court's power of judicial review and its application
on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the
usual comment that the judiciary is the weakest among the three major
branches of the service. Since the legislature holds the purse and the
executive the sword, the judiciary has nothing with which to enforce its
decisions or commands except the power of reason and appeal to conscience
which, after all, reflects the will of God, and is the most powerful of all other
powers without exception. x x x And so, with the body's indulgence, I will
proceed to read the provisions drafted by the Committee on the Judiciary.
The first section starts with a sentence copied from former Constitutions. It
says:
The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first
and explain.
Judicial power includes the duty of courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our
experience during martial law. As a matter of fact, it has some
antecedents in the past, but the role of the judiciary during the
deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then
had no legal defense at all, the solicitor general set up the
defense of political questions and got away with it. As a
consequence, certain principles concerning particularly the writ
of habeas corpus, that is, the authority of courts to order the
release of political detainees, and other matters related to the
operation and effect of martial law failed because the government
set up the defense of political question. And the Supreme Court
said: "Well, since it is political, we have no authority to pass upon
it." The Committee on the Judiciary feels that this was not a
proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but it, in
effect, encouraged further violations thereof during the martial
law regime. I am sure the members of the Bar are familiar with this
situation. But for the benefit of the Members of the Commission who
are not lawyers, allow me to explain. I will start with a decision of the
Supreme Court in 1973 on the case of Javellana vs. the Secretary of
Justice, if I am not mistaken. Martial law was announced on
September 22, although the proclamation was dated September 21.
The obvious reason for the delay in its publication was that the
administration had apprehended and detained prominent newsmen on
September 21. So that when martial law was announced on
September 22, the media hardly published anything about it. In fact,
the media could not publish any story not only because our main
writers were already incarcerated, but also because those who
succeeded them in their jobs were under mortal threat of being the
object of wrath of the ruling party. The 1971 Constitutional Convention
had begun on June 1, 1971 and by September 21 or 22 had not
finished the Constitution; it had barely agreed in the fundamentals of
the Constitution. I forgot to say that upon the proclamation of martial
law, some delegates to that 1971 Constitutional Convention, dozens
of them, were picked up. One of them was our very own colleague,
Commissioner Calderon. So, the unfinished draft of the Constitution
was taken over by representatives of Malacaang. In 17 days, they
finished what the delegates to the 1971 Constitutional Convention had
been unable to accomplish for about 14 months. The draft of the 1973
Constitution was presented to the President around December 1,
1972, whereupon the President issued a decree calling a plebiscite
which suspended the operation of some provisions in the martial law
decree which prohibited discussions, much less public discussions of
certain matters of public concern. The purpose was presumably to
allow a free discussion on the draft of the Constitution on which a
plebiscite was to be held sometime in January 1973. If I may use a
word famous by our colleague, Commissioner Ople, during the
interregnum, however, the draft of the Constitution was analyzed and
criticized with such a telling effect that Malacaang felt the danger of
its approval. So, the President suspended indefinitely the holding of
the plebiscite and announced that he would consult the people in a
referendum to be held from January 10 to January 15. But the
questions to be submitted in the referendum were not announced until
the eve of its scheduled beginning, under the supposed supervision
not of the Commission on Elections, but of what was then designated
as "citizens assemblies or barangays." Thus the barangays came into
existence. The questions to be propounded were released with
proposed answers thereto, suggesting that it was unnecessary to hold
a plebiscite because the answers given in the referendum should be
regarded as the votes cast in the plebiscite. Thereupon, a motion was
filed with the Supreme Court praying that the holding of the
referendum be suspended. When the motion was being heard before
the Supreme Court, the Minister of Justice delivered to the Court a
proclamation of the President declaring that the new Constitution was
already in force because the overwhelming majority of the votes cast
in the referendum favored the Constitution. Immediately after the
departure of the Minister of Justice, I proceeded to the session room
where the case was being heard. I then informed the Court and the
parties the presidential proclamation declaring that the 1973
Constitution had been ratified by the people and is now in force.
A number of other cases were filed to declare the presidential
proclamation null and void. The main defense put up by the
government was that the issue was a political question and that the
court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January 10 to
January 15, the vast majority ratified the draft of the Constitution. Note
that all members of the Supreme Court were residents of Manila, but
none of them had been notified of any referendum in their respective
places of residence, much less did they participate in the alleged
referendum. None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a
majority of the members of the Court felt that there had been no
referendum.
Second, a referendum cannot substitute for a plebiscite. There is a
big difference between a referendum and a plebiscite. But
another group of justices upheld the defense that the issue was
a political question. Whereupon, they dismissed the case. This is
not the only major case in which the plea of "political question"
was set up. There have been a number of other cases in the past.
 x x x The defense of the political question was rejected because
the issue was clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its
functions, it faced the following questions: What is judicial power?
What is a political question?
The Supreme Court, like all other courts, has one main function: to
settle actual controversies involving conflicts of rights which are
demandable and enforceable. There are rights which are guaranteed
by law but cannot be enforced by a judiciary party. In a decided case,
a husband complained that his wife was unwilling to perform her duties
as a wife. The Court said: "We can tell your wife what her duties as
such are and that she is bound to comply with them, but we cannot
force her physically to discharge her main marital duty to her husband.
There are some rights guaranteed by law, but they are so personal
that to enforce them by actual compulsion would be highly derogatory
to human dignity."
This is why the first part of the second paragraph of Section I provides that:
Judicial power includes the duty of courts to settle actual controversies
involving rights which are legally demandable or enforceable . . .
The courts, therefore, cannot entertain, much less decide,
hypothetical questions. In a presidential system of government, the
Supreme Court has, also another important function. The powers
of government are generally considered divided into three
branches: the Legislative, the Executive and the Judiciary. Each
one is supreme within its own sphere and independent of the
others. Because of that supremacy power to determine whether
a given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of
the agencies and offices of the government as well as those of
its officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means
that the courts cannot hereafter evade the duty to settle matters
of this nature, by claiming that such matters constitute a political
question.
I have made these extended remarks to the end that the
Commissioners may have an initial food for thought on the subject of
the judiciary.103 (Italics in the original; emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice
Concepcion further clarified the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power"
but judicial power is not vested in the Supreme Court alone but
also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems
to identify political questions with jurisdictional questions. But
there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to
ordinary cases but where there is a question as to whether the
government had authority or had abused its authority to the
extent of lacking jurisdiction or excess of jurisdiction, that is not
a political question. Therefore, the court has the duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be decided
by the Supreme Court according to the new numerical need for votes.
On another point, is it the intention of Section 1 to do away with
the political question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
 MR. CONCEPCION. No, because whenever there is an abuse of
discretion, amounting to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not
intended to do away with the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to define
what is judicial power. But the Gentleman will notice it says,
"judicial power includes" and the reason being that the definition
that we might make may not cover all possible areas.
FR. BERNAS. So, this is not an attempt to solve the problems
arising from the political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that
truly political questions are beyond the pale of judicial
power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional
Commission, it is clear that judicial power is not only a power; it is also a duty,
a duty which cannot be abdicated by the mere specter of this creature called
the political question doctrine. Chief Justice Concepcion hastened to clarify,
however, that Section 1, Article VIII was not intended to do away with "truly
political questions." From this clarification it is gathered that there are two
species of political questions: (1) "truly political questions" and (2) those which
"are not truly political questions."
Truly political questions are thus beyond judicial review, the reason for respect
of the doctrine of separation of powers to be maintained. On the other hand,
by virtue of Section 1, Article VIII of the Constitution, courts can review
questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP
College of Law, this Court has in fact in a number of cases taken jurisdiction
over questions which are not truly political following the effectivity of the
present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene
Cortes, held:
The present Constitution limits resort to the political question doctrine
and broadens the scope of judicial inquiry into areas which the Court,
under previous constitutions, would have normally left to the political
departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro
Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court
must perform under the Constitution. Moreover, as held in a recent
case, "(t)he political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given
to this Court. It cannot abdicate that obligation mandated by the
1987 Constitution, although said provision by no means does
away with the applicability of the principle in appropriate
cases."108 (Emphasis and underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court
ruled:
In the case now before us, the jurisdictional objection becomes even
less tenable and decisive. The reason is that, even if we were to
assume that the issue presented before us was political in nature, we
would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question.110 x x x (Emphasis and
underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable political
questions and non-justiciable political questions, however. Identification of
these two species of political questions may be problematic. There has been
no clear standard. The American case of Baker v. Carr111 attempts to provide
some:
x x x Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it;
or the impossibility of deciding without an initial policy determination
of a kind clearly for non-judicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual
need for questioning adherence to a political decision already made;
or thepotentiality of embarrassment from multifarious
pronouncements by various departments on one
question.112 (Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually
demonstrable constitutional commitment of the issue to a coordinate political
department; (2) the lack of judicially discoverable and manageable standards
for resolving it; and (3) the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion. These standards are
not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American concept
of judicial review is radically different from our current concept, for Section 1,
Article VIII of the Constitution provides our courts with far less discretion in
determining whether they should pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-
justiciable political question lies in the answer to the question of whether there
are constitutionally imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound to examine
whether the branch or instrumentality of the government properly acted within
such limits. This Court shall thus now apply this standard to the present
controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint
constitute valid impeachable offenses under the Constitution.
II. Whether the second impeachment complaint was filed in
accordance with Section 3(4), Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice
into the Judicial Development Fund is an unconstitutional infringement
of the constitutionally mandated fiscal autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on
Impeachment adopted by the 12th Congress are unconstitutional for
violating the provisions of Section 3, Article XI of the Constitution.
V. Whether the second impeachment complaint is barred under
Section 3(5) of Article XI of the Constitution.
The first issue goes into the merits of the second impeachment
complaint over which this Court has no jurisdiction. More importantly,
any discussion of this issue would require this Court to make a
determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has
left to the sound discretion of the legislation. Such an intent is clear
from the deliberations of the Constitutional Commission.113
Although Section 2 of Article XI of the Constitution enumerates six grounds for
impeachment, two of these, namely, other high crimes and betrayal of public
trust, elude a precise definition. In fact, an examination of the records of the
1986 Constitutional Commission shows that the framers could find no better
way to approximate the boundaries of betrayal of public trust and other high
crimes than by alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard therefor. 114 Clearly, the
issue calls upon this court to decide a non-justiciable political question which
is beyond the scope of its judicial power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the
constitutionality of a governmental act should be avoided whenever possible.
Thus, in the case of Sotto v. Commission on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass upon a
constitutional question and decide a law to be unconstitutional or
invalid, unless such question is raised by the parties and that when it
is raised,if the record also presents some other ground upon
which the court may rest its judgment, that course will be
adopted and the constitutional question will be left for
consideration until a case arises in which a decision upon such
question will be unavoidable.116 [Emphasis and underscoring
supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian
Reform,117 where this Court invalidated Sections 13 and 32 of Republic Act
No. 6657 for being confiscatory and violative of due process, to wit:
It has been established that this Court will assume jurisdiction over
a constitutional question only if it is shown that the essential
requisites of a judicial inquiry into such a question are first
satisfied. Thus, there must be an actual case or controversy involving
a conflict of legal rights susceptible of judicial determination, the
constitutional question must have been opportunely raised by the
proper party, and the resolution of the question is unavoidably
necessary to the decision of the case itself.118 [Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is
truly unavoidable and is the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the
invalidity of the second impeachment complaint, collectively raise several
constitutional issues upon which the outcome of this controversy could
possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided by
the related cannon of adjudication that "the court should not form a rule of
constitutional law broader than is required by the precise facts to which it is
applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among
other reasons, the second impeachment complaint is invalid since it directly
resulted from a Resolution120 calling for a legislative inquiry into the JDF, which
Resolution and legislative inquiry petitioners claim to likewise be
unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of
separation of powers; (c) a violation of the constitutionally mandated fiscal
autonomy of the judiciary; and (d) an assault on the independence of the
judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the
studied opinion of this Court that the issue of the constitutionality of the said
Resolution and resulting legislative inquiry is too far removed from the issue of
the validity of the second impeachment complaint. Moreover, the resolution of
said issue would, in the Court's opinion, require it to form a rule of constitutional
law touching on the separate and distinct matter of legislative inquiries in
general, which would thus be broader than is required by the facts of these
consolidated cases. This opinion is further strengthened by the fact that said
petitioners have raised other grounds in support of their petition which would
not be adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative
inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate
Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both houses
of Congress to conduct inquiries in aid of legislation. Thus, Section 21,
Article VI thereof provides:
The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance
with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected.
The power of both houses of Congress to conduct inquiries in aid of
legislation is not, therefore absolute or unlimited. Its exercise is
circumscribed by the afore-quoted provision of the Constitution. Thus,
as provided therein, the investigation must be "in aid of legislation in
accordance with its duly published rules of procedure" and that "the
rights of persons appearing in or affected by such inquiries shall be
respected." It follows then that the right rights of persons under the Bill
of Rights must be respected, including the right to due process and
the right not be compelled to testify against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino
Quadra, while joining the original petition of petitioners Candelaria, et.
al., introduce the new argument that since the second impeachment complaint
was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix
William Fuentebella, the same does not fall under the provisions of Section 3
(4), Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the Members of the
House, the same shall constitute the Articles of Impeachment, and trial
by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of Representatives
signed a Resolution of Endorsement/Impeachment, the same did not satisfy
the requisites for the application of the afore-mentioned section in that the
"verified complaint or resolution of impeachment" was not filed "by at least one-
third of all the Members of the House." With the exception of Representatives
Teodoro and Fuentebella, the signatories to said Resolution are alleged to
have verified the same merely as a "Resolution of Endorsement." Intervenors
point to the "Verification" of the Resolution of Endorsement which states that:
"We are the proponents/sponsors of the Resolution of Endorsement
of the abovementioned Complaint of Representatives Gilberto
Teodoro and Felix William B. Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what the Constitution
requires in order for said second impeachment complaint to automatically
become the Articles of Impeachment and for trial in the Senate to begin
"forthwith," is that the verified complaint be "filed," not merely endorsed, by at
least one-third of the Members of the House of Representatives. Not having
complied with this requirement, they concede that the second impeachment
complaint should have been calendared and referred to the House Committee
on Justice under Section 3(2), Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon a
resolution of endorsement by any Member thereof, which shall be
 included in the Order of Business within ten session days, and referred
to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members,
shall submit its report to the House within sixty session days from such
referral, together with the corresponding resolution. The resolution
shall be calendared for consideration by the House within ten session
days from receipt thereof.
Intervenors' foregoing position is echoed by Justice Maambong who opined
that for Section 3 (4), Article XI of the Constitution to apply, there should be 76
or more representatives who signed and verified the second impeachment
complaint as complainants, signed and verified the signatories to a resolution
of impeachment. Justice Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the members of the
House of Representatives as endorsers is not the resolution of impeachment
contemplated by the Constitution, such resolution of endorsement being
necessary only from at least one Member whenever a citizen files a verified
impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra,
does indeed limit the scope of the constitutional issues to the provisions on
impeachment, more compelling considerations militate against its adoption as
the lis mota or crux of the present controversy. Chief among this is the fact
that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262,
have raised this issue as a ground for invalidating the second impeachment
complaint. Thus, to adopt this additional ground as the basis for deciding the
instant consolidated petitions would not only render for naught the efforts of
the original petitioners in G.R. No. 160262, but the efforts presented by the
other petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for
the determination of the instant cases is made easier by the fact that said
intervenors Macalintal and Quadra have joined in the petition of Candelaria, et.
al., adopting the latter's arguments and issues as their own. Consequently,
they are not unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably linked as
they are, constitute the very lis mota of the instant controversy: (1) whether
Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by
the 12th Congress are unconstitutional for violating the provisions of Section
3, Article XI of the Constitution; and (2) whether, as a result thereof, the second
impeachment complaint is barred under Section 3(5) of Article XI of the
Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground
that the Senate, sitting as an impeachment court, has the sole power to try and
decide all cases of impeachment. Again, this Court reiterates that the power
of judicial review includes the power of review over justiciable issues in
impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here
is a moral compulsion for the Court to not assume jurisdiction over the
impeachment because all the Members thereof are subject to
impeachment."125 But this argument is very much like saying the Legislature
has a moral compulsion not to pass laws with penalty clauses because
Members of the House of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option before
this Court. Adjudication may not be declined, because this Court is not legally
disqualified. Nor can jurisdiction be renounced as there is no other tribunal to
which the controversy may be referred."126 Otherwise, this Court would be
shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More
than being clothed with authority thus, this Court is duty-bound to take
cognizance of the instant petitions.127 In the august words of amicus
curiae Father Bernas, "jurisdiction is not just a power; it is a solemn duty which
may not be renounced. To renounce it, even if it is vexatious, would be a
dereliction of duty."
Even in cases where it is an interested party, the Court under our system of
government cannot inhibit itself and must rule upon the challenge because no
other office has the authority to do so.128 On the occasion that this Court had
been an interested party to the controversy before it, it has acted upon the
matter "not with officiousness but in the discharge of an unavoidable duty and,
as always, with detachment and fairness."129 After all, "by [his] appointment to
the office, the public has laid on [a member of the judiciary] their confidence
that [he] is mentally and morally fit to pass upon the merits of their varied
contentions. For this reason, they expect [him] to be fearless in [his] pursuit to
render justice, to be unafraid to displease any person, interest or power and to
be equipped with a moral fiber strong enough to resist the temptations lurking
in [his] office."130
The duty to exercise the power of adjudication regardless of interest had
already been settled in the case ofAbbas v. Senate Electoral Tribunal.131 In
that case, the petitioners filed with the respondent Senate Electoral Tribunal a
Motion for Disqualification or Inhibition of the Senators-Members thereof from
the hearing and resolution of SET Case No. 002-87 on the ground that all of
them were interested parties to said case as respondents therein. This would
have reduced the Tribunal's membership to only its three Justices-Members
whose disqualification was not sought, leaving them to decide the matter. This
Court held:
 Where, as here, a situation is created which precludes the substitution
of any Senator sitting in the Tribunal by any of his other colleagues in
the Senate without inviting the same objections to the substitute's
competence, the proposed mass disqualification, if sanctioned and
ordered, would leave the Tribunal no alternative but to abandon a duty
that no other court or body can perform, but which it cannot lawfully
discharge if shorn of the participation of its entire membership of
Senators.
To our mind, this is the overriding consideration that the Tribunal
be not prevented from discharging a duty which it alone has the power
to perform, the performance of which is in the highest public interest
as evidenced by its being expressly imposed by no less than the
fundamental law.
It is aptly noted in the first of the questioned Resolutions that the
framers of the Constitution could not have been unaware of the
possibility of an election contest that would involve all Senators
elect, six of whom would inevitably have to sit in judgment thereon.
Indeed, such possibility might surface again in the wake of the 1992
elections when once more, but for the last time, all 24 seats in the
Senate will be at stake. Yet the Constitution provides no scheme or
mode for settling such unusual situations or for the substitution of
Senators designated to the Tribunal whose disqualification may be
sought. Litigants in such situations must simply place their trust and
hopes of vindication in the fairness and sense of justice of the
Members of the Tribunal. Justices and Senators, singly and
collectively.
Let us not be misunderstood as saying that no Senator-Member of the
Senate Electoral Tribunal may inhibit or disqualify himself from sitting
in judgment on any case before said Tribunal. Every Member of the
Tribunal may, as his conscience dictates, refrain from participating in
the resolution of a case where he sincerely feels that his personal
interests or biases would stand in the way of an objective and impartial
judgment. What we are merely saying is that in the light of the
Constitution, the Senate Electoral Tribunal cannot legally function as
such, absent its entire membership of Senators and that no
amendment of its Rules can confer on the three Justices-Members
alone the power of valid adjudication of a senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was held that:
Moreover, to disqualify any of the members of the Court, particularly
a majority of them, is nothing short ofpro tanto depriving the Court itself
of its jurisdiction as established by the fundamental law.
Disqualification of a judge is a deprivation of his judicial power. And if
that judge is the one designated by the Constitution to exercise the
jurisdiction of his court, as is the case with the Justices of this Court,
the deprivation of his or their judicial power is equivalent to the
deprivation of the judicial power of the court itself. It affects the very
heart of judicial independence. The proposed mass disqualification, if
sanctioned and ordered, would leave the Court no alternative but to
abandon a duty which it cannot lawfully discharge if shorn of the
participation of its entire membership of Justices. 133 (Italics in the
original)
Besides, there are specific safeguards already laid down by the Court when it
exercises its power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the
"seven pillars" of limitations of the power of judicial review, enunciated by US
Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation in a
friendly, non-adversary proceeding, declining because to decide such
questions 'is legitimate only in the last resort, and as a necessity in the
determination of real, earnest and vital controversy between
individuals. It never was the thought that, by means of a friendly suit,
a party beaten in the legislature could transfer to the courts an inquiry
as to the constitutionality of the legislative act.'
2. The Court will not 'anticipate a question of constitutional law in
advance of the necessity of deciding it.' . . . 'It is not the habit of the
Court to decide questions of a constitutional nature unless absolutely
necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law broader than
is required by the precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although
properly presented by the record, if there is also present some other
ground upon which the case may be disposed of. This rule has found
most varied application. Thus, if a case can be decided on either of
two grounds, one involving a constitutional question, the other a
question of statutory construction or general law, the Court will decide
only the latter. Appeals from the highest court of a state challenging
its decision of a question under the Federal Constitution are frequently
dismissed because the judgment can be sustained on an independent
state ground.
 5. The Court will not pass upon the validity of a statute upon complaint
of one who fails to show that he is injured by its operation. Among the
many applications of this rule, none is more striking than the denial of
the right of challenge to one who lacks a personal or property right.
Thus, the challenge by a public official interested only in the
performance of his official duty will not be entertained . . . In Fairchild
v. Hughes, the Court affirmed the dismissal of a suit brought by a
citizen who sought to have the Nineteenth Amendment declared
unconstitutional. In Massachusetts v. Mellon, the challenge of the
federal Maternity Act was not entertained although made by the
Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the
instance of one who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question,
and even if a serious doubt of constitutionality is raised, it is a cardinal
principle that this Court will first ascertain whether a construction of
the statute is fairly possible by which the question may be avoided
(citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized
in Ashwander v. TVA from different decisions of the United States Supreme
Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required
by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the
operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in
the exercise of judicial review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge;
he must have a personal and substantial interest in the case such that
he has sustained, or will sustain, direct injury as a result of its
enforcement
3. the question of constitutionality must be raised at the earliest
possible opportunity
4. the issue of constitutionality must be the very lis mota of the case.136
Respondents Speaker de Venecia, et. al. raise another argument for judicial
restraint the possibility that "judicial review of impeachments might also lead
to embarrassing conflicts between the Congress and the [J]udiciary." They
stress the need to avoid the appearance of impropriety or conflicts of interest
in judicial hearings, and the scenario that it would be confusing and humiliating
and risk serious political instability at home and abroad if the judiciary
countermanded the vote of Congress to remove an impeachable
official.137 Intervenor Soriano echoes this argument by alleging that failure of
this Court to enforce its Resolution against Congress would result in the
diminution of its judicial authority and erode public confidence and faith in the
judiciary.
Such an argument, however, is specious, to say the least. As correctly stated
by the Solicitor General, the possibility of the occurrence of a constitutional
crisis is not a reason for this Court to refrain from upholding the Constitution in
all impeachment cases. Justices cannot abandon their constitutional duties
just because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive
act is not regarded as settled until the Supreme Court has passed
upon the constitutionality of the act involved, the judgment has not
only juridical effects but also political consequences. Those political
consequences may follow even where the Court fails to grant the
petitioner's prayer to nullify an act for lack of the necessary number of
votes. Frequently, failure to act explicitly, one way or the other, itself
constitutes a decision for the respondent and validation, or at least
quasi-validation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was split and "in
the end there were not enough votes either to grant the petitions, or to sustain
respondent's claims,"140 the pre-existing constitutional order was disrupted
which paved the way for the establishment of the martial law regime.
Such an argument by respondents and intervenor also presumes that the
coordinate branches of the government would behave in a lawless manner
and not do their duty under the law to uphold the Constitution and obey the
laws of the land. Yet there is no reason to believe that any of the branches of
government will behave in a precipitate manner and risk social upheaval,
violence, chaos and anarchy by encouraging disrespect for the fundamental
law of the land.
Substituting the word public officers for judges, this Court is well guided by the
doctrine in People v. Veneracion, to wit:141
Obedience to the rule of law forms the bedrock of our system of
justice. If [public officers], under the guise of religious or political
beliefs were allowed to roam unrestricted beyond boundaries within
which they are required by law to exercise the duties of their office,
then law becomes meaningless. A government of laws, not of men
excludes the exercise of broad discretionary powers by those acting
under its authority. Under this system, [public officers] are guided by
the Rule of Law, and ought "to protect and enforce it without fear or
favor," resist encroachments by governments, political parties, or even
the interference of their own personal beliefs.142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues
that Sections 16 and 17 of Rule V of the House Impeachment Rules do not
violate Section 3 (5) of Article XI of our present Constitution, contending that
the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that it is
the House of Representatives, as a collective body, which has the exclusive
power to initiate all cases of impeachment; that initiate could not possibly mean
"to file" because filing can, as Section 3 (2), Article XI of the Constitution
provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint
for impeachment by any member of the House of Representatives; or (2) by
any citizen upon a resolution of endorsement by any member; or (3) by at least
1/3 of all the members of the House. Respondent House of Representatives
concludes that the one year bar prohibiting the initiation of impeachment
proceedings against the same officials could not have been violated as the
impeachment complaint against Chief Justice Davide and seven Associate
Justices had not been initiated as the House of Representatives, acting as
the collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term
"initiate." Resort to statutory construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution,
Commissioner Florenz Regalado, who eventually became an Associate
Justice of this Court, agreed on the meaning of "initiate" as "to file," as
proffered and explained by Constitutional Commissioner Maambong during
the Constitutional Commission proceedings, which he (Commissioner
Regalado) as amicus curiae affirmed during the oral arguments on the instant
petitions held on November 5, 2003 at which he added that the act of
"initiating" included the act of taking initial action on the complaint, dissipates
any doubt that indeed the word "initiate" as it twice appears in Article XI (3)
and (5) of the Constitution means to file the complaint and take initial action on
it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries do,
to begin, to commence, or set going. As Webster's Third New International
Dictionary of the English Language concisely puts it, it means "to perform
or facilitate the first action," which jibes with Justice Regalado's position, and
that of Father Bernas, who elucidated during the oral arguments of the instant
petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a
comlexus of acts consisting of a beginning, a middle and an end. The
end is the transmittal of the articles of impeachment to the Senate.
The middle consists of those deliberative moments leading to the
formulation of the articles of impeachment. The beginning or the
initiation is the filing of the complaint and its referral to the Committee
on Justice.
Finally, it should be noted that the House Rule relied upon by
Representatives Cojuangco and Fuentebella says that impeachment
is "deemed initiated" when the Justice Committee votes in favor of
impeachment or when the House reverses a contrary vote of the
Committee. Note that the Rule does not say "impeachment
proceedings" are initiated but rather are "deemed initiated." The
language is recognition that initiation happened earlier, but by legal
fiction there is an attempt to postpone it to a time after actual initiation.
(Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking
into the intent of the law. Fortunately, the intent of the framers of the 1987
Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the
procedure and the substantive provisions on impeachment, I
understand there have been many proposals and, I think, these would
need some time for Committee action.
However, I would just like to indicate that I submitted to the Committee
a resolution on impeachment proceedings, copies of which have been
furnished the Members of this body. This is borne out of my
experience as a member of the Committee on Justice, Human Rights
and Good Government which took charge of the last impeachment
resolution filed before the First Batasang Pambansa. For the
information of the Committee, the resolution covers several
steps in the impeachment proceedings starting with initiation,
action of the Speaker committee action, calendaring of report,
voting on the report, transmittal referral to the Senate, trial and
judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a
reconsideration of the approval of the amendment submitted by
Commissioner Regalado, but I will just make of record my thinking that
we do not really initiate the filing of the Articles of Impeachment on the
floor. The procedure, as I have pointed out earlier, was that the
initiation starts with the filing of the complaint. And what is
actually done on the floor is that the committee resolution
containing the Articles of Impeachment is the one approved by
the body.
As the phraseology now runs, which may be corrected by the
Committee on Style, it appears that the initiation starts on the floor. If
we only have time, I could cite examples in the case of the
impeachment proceedings of President Richard Nixon wherein the
Committee on the Judiciary submitted the recommendation, the
resolution, and the Articles of Impeachment to the body, and it was the
body who approved the resolution. It is not the body which initiates
it. It only approves or disapproves the resolution. So, on that
score, probably the Committee on Style could help in rearranging
these words because we have to be very technical about this. I have
been bringing with me The Rules of the House of Representatives of
the U.S. Congress. The Senate Rules are with me. The proceedings
on the case of Richard Nixon are with me. I have submitted my
proposal, but the Committee has already decided. Nevertheless, I just
want to indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of
the approval of Section 3 (3). My reconsideration will not at all affect
the substance, but it is only in keeping with the exact formulation of
the Rules of the House of Representatives of the United States
regarding impeachment.
I am proposing, Madam President, without doing damage to any of
this provision, that on page 2, Section 3 (3), from lines 17 to 18, we
delete the words which read: "to initiate impeachment
proceedings" and the comma (,) and insert on line 19 after the word
"resolution" the phrase WITH THE ARTICLES, and then capitalize the
letter "i" in "impeachment" and replace the word "by" with OF, so that
the whole section will now read: "A vote of at least one-third of all the
Members of the House shall be necessary either to affirm a resolution
WITH THE ARTICLES of Impeachment OF the Committee or to
override its contrary resolution. The vote of each Member shall be
recorded."
I already mentioned earlier yesterday that the initiation, as far as
the House of Representatives of the United States is
concerned, really starts from the filing of the verified
complaint and every resolution to impeach always carries with it the
Articles of Impeachment. As a matter of fact, the words "Articles of
Impeachment" are mentioned on line 25 in the case of the direct filing
of a verified compliant of one-third of all the Members of the House. I
will mention again, Madam President, that my amendment will not vary
the substance in any way. It is only in keeping with the uniform
procedure of the House of Representatives of the United States
Congress. Thank you, Madam President.143 (Italics in the original;
emphasis and udnerscoring supplied)
This amendment proposed by Commissioner Maambong was clarified and
accepted by the Committee on the Accountability of Public Officers.144
It is thus clear that the framers intended "initiation" to start with the filing of the
complaint. In his amicus curiaebrief, Commissioner Maambong explained that
"the obvious reason in deleting the phrase "to initiate impeachment
proceedings" as contained in the text of the provision of Section 3 (3) was to
settle and make it understood once and for all that the initiation of
impeachment proceedings starts with the filing of the complaint, and the
vote of one-third of the House in a resolution of impeachment does not
initiate the impeachment proceedings which was already initiated by the
filing of a verified complaint under Section 3, paragraph (2), Article XI of
the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same view as
is Father Bernas, who was also a member of the 1986 Constitutional
Commission, that the word "initiate" as used in Article XI, Section 3(5) means
to file, both adding, however, that the filing must be accompanied by an action
to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the
word "initiate," appearing in the constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive
power to initiate all cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the same
official more than once within a period of one year, (Emphasis
supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."
Father Bernas explains that in these two provisions, the common verb is "to
initiate." The object in the first sentence is "impeachment case." The object in
the second sentence is "impeachment proceeding." Following the principle
of reddendo singuala sinuilis, the term "cases" must be distinguished from the
term "proceedings." An impeachment case is the legal controversy that must
be decided by the Senate. Above-quoted first provision provides that the
House, by a vote of one-third of all its members, can bring a case to the
Senate. It is in that sense that the House has "exclusive power" to initiate all
cases of impeachment. No other body can do it. However, before a decision
is made to initiate a case in the Senate, a "proceeding" must be followed to
arrive at a conclusion. A proceeding must be "initiated." To initiate, which
comes from the Latin word initium, means to begin. On the other hand,
proceeding is a progressive noun. It has a beginning, a middle, and an end. It
takes place not in the Senate but in the House and consists of several steps:
(1) there is the filing of a verified complaint either by a Member of the House
of Representatives or by a private citizen endorsed by a Member of the House
of the Representatives; (2) there is the processing of this complaint by the
proper Committee which may either reject the complaint or uphold it; (3)
whether the resolution of the Committee rejects or upholds the complaint, the
resolution must be forwarded to the House for further processing; and (4) there
is the processing of the same complaint by the House of Representatives
which either affirms a favorable resolution of the Committee or overrides a
contrary resolution by a vote of one-third of all the members. If at least one
third of all the Members upholds the complaint, Articles of Impeachment are
prepared and transmitted to the Senate. It is at this point that the House
"initiates an impeachment case." It is at this point that an impeachable public
official is successfully impeached. That is, he or she is successfully charged
with an impeachment "case" before the Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not initiated
when the complaint is transmitted to the Senate for trial because that is the
end of the House proceeding and the beginning of another proceeding, namely
the trial. Neither is the "impeachment proceeding" initiated when the House
deliberates on the resolution passed on to it by the Committee, because
something prior to that has already been done. The action of the House is
already a further step in the proceeding, not its initiation or beginning.
Rather, the proceeding is initiated or begins, when a verified complaint is filed
and referred to the Committee on Justice for action. This is the initiating step
which triggers the series of steps that follow.
The framers of the Constitution also understood initiation in its ordinary
meaning. Thus when a proposal reached the floor proposing that "A vote of at
least one-third of all the Members of the House shall be necessary toinitiate
impeachment proceedings," this was met by a proposal to delete the line on
the ground that the vote of the House does not initiate impeachment
proceeding but rather the filing of a complaint does. 146 Thus the line was
deleted and is not found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment
proceeding shall be initiated against the same official more than once within a
period of one year," it means that no second verified complaint may be
accepted and referred to the Committee on Justice for action. By his
explanation, this interpretation is founded on the common understanding of
the meaning of "to initiate" which means to begin. He reminds that the
Constitution is ratified by the people, both ordinary and sophisticated, as they
understand it; and that ordinary people read ordinary meaning into ordinary
words and not abstruse meaning, they ratify words as they understand it and
not as sophisticated lawyers confuse it.
To the argument that only the House of Representatives as a body can initiate
impeachment proceedings because Section 3 (1) says "The House of
Representatives shall have the exclusive power to initiate all cases of
impeachment," This is a misreading of said provision and is contrary to the
principle of reddendo singula singulisby equating "impeachment cases" with
"impeachment proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs
of two former Constitutional Commissioners, it is without a doubt that the term
"to initiate" refers to the filing of the impeachment complaint coupled with
Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of filing and referral
or endorsement of the impeachment complaint to the House Committee on
Justice or, by the filing by at least one-third of the members of the House of
Representatives with the Secretary General of the House, the meaning of
Section 3 (5) of Article XI becomes clear. Once an impeachment complaint
has been initiated, another impeachment complaint may not be filed against
the same official within a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules,
impeachment proceedings are deemed initiated (1) if there is a finding by the
House Committee on Justice that the verified complaint and/or resolution is
sufficient in substance, or (2) once the House itself affirms or overturns the
finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement
before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of
the House. These rules clearly contravene Section 3 (5) of Article XI since the
rules give the term "initiate" a meaning different meaning from filing and
referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could
not use contemporaneous construction as an aid in the interpretation of Sec.3
(5) of Article XI, citing Vera v. Avelino147 wherein this Court stated that "their
personal opinions (referring to Justices who were delegates to the Constitution
Convention) on the matter at issue expressed during this Court's our
deliberations stand on a different footing from the properly recorded utterances
of debates and proceedings." Further citing said case, he states that this Court
likened the former members of the Constitutional Convention to actors who
are so absorbed in their emotional roles that intelligent spectators may know
more about the real meaning because of the latter's balanced perspectives
and disinterestedness.148
Justice Gutierrez's statements have no application in the present petitions.
There are at present only two members of this Court who participated in the
1986 Constitutional Commission Chief Justice Davide and Justice Adolf
Azcuna. Chief Justice Davide has not taken part in these proceedings for
obvious reasons. Moreover, this Court has not simply relied on the personal
opinions now given by members of the Constitutional Commission, but has
examined the records of the deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of
Article XI, it is clear and unequivocal that it and only it has the power
to make and interpret its rules governing impeachment. Its argument is
premised on the assumption that Congress has absolute power to promulgate
its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its
rules on impeachment to effectively carry out the purpose of this section."
Clearly, its power to promulgate its rules on impeachment is limited by the
phrase "to effectively carry out the purpose of this section." Hence, these rules
cannot contravene the very purpose of the Constitution which said rules were
intended to effectively carry out. Moreover, Section 3 of Article XI clearly
provides for other specific limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member
of the House of Representatives or by any citizen upon a resolution of
endorsement by any Member thereof, which shall be included in the
Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral,
together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days
from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall
be necessary to either affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution.
The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed
by at least one-third of all the Members of the House, the same shall
constitute the Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same
official more than once within a period of one year.
It is basic that all rules must not contravene the Constitution which is the
fundamental law. If as alleged Congress had absolute rule making power, then
it would by necessary implication have the power to alter or amend the
meaning of the Constitution without need of referendum.
In Osmea v. Pendatun,149 this Court held that it is within the province of either
House of Congress to interpret its rules and that it was the best judge of what
constituted "disorderly behavior" of its members. However, in Paceta v.
Secretary of the Commission on Appointments,150 Justice (later Chief Justice)
Enrique Fernando, speaking for this Court and quoting Justice Brandeis
in United States v. Smith,151 declared that where the construction to be given
to a rule affects persons other than members of the Legislature, the question
becomes judicial in nature. InArroyo v. De Venecia,152 quoting United States
v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking for this Court,
held that while the Constitution empowers each house to determine its rules
of proceedings, it may not by its rules ignore constitutional restraints or violate
fundamental rights, and further that there should be a reasonable relation
between the mode or method of proceeding established by the rule and the
result which is sought to be attained. It is only within these limitations that all
matters of method are open to the determination of the Legislature. In the
same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his
Concurring and Dissenting Opinion, was even more emphatic as he stressed
that in the Philippine setting there is even more reason for courts to inquire into
the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the
petitioner are non-justiciable. Nor do I agree that we will trivialize
the principle of separation of power if we assume jurisdiction
over he case at bar. Even in the United States, the principle of
separation of power is no longer an impregnable impediment against
the interposition of judicial power on cases involving breach of rules of
procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as
a window to view the issues before the Court. It is in Ballin where the
US Supreme Court first defined the boundaries of the power of the
judiciary to review congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house may
determine the rules of its proceedings." It appears that in pursuance
of this authority the House had, prior to that day, passed this as one
of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker,
the names of members sufficient to make a quorum in the hall of the
House who do not vote shall be noted by the clerk and recorded in the
journal, and reported to the Speaker with the names of the members
voting, and be counted and announced in determining the presence
of a quorum to do business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The
question, therefore, is as to the validity of this rule, and not what
methods the Speaker may of his own motion resort to for determining
the presence of a quorum, nor what matters the Speaker or clerk may
of their own volition place upon the journal. Neither do the advantages
or disadvantages, the wisdom or folly, of such a rule present any
matters for judicial consideration. With the courts the question is only
one of power. The Constitution empowers each house to
determine its rules of proceedings. It may not by its rules ignore
constitutional restraints or violate fundamental rights, and there
should be a reasonable relation between the mode or method of
proceedings established by the rule and the result which is
sought to be attained. But within these limitations all matters of
method are open to the determination of the House, and it is no
impeachment of the rule to say that some other way would be better,
more accurate, or even more just. It is no objection to the validity of a
rule that a different one has been prescribed and in force for a length
of time. The power to make rules is not one which once exercised is
exhausted. It is a continuous power, always subject to be exercised
by the House, and within the limitations suggested, absolute and
beyond the challenge of any other body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon
the validity of congressional rules, i.e, whether they are
constitutional. Rule XV was examined by the Court and it was found
to satisfy the test: (1) that it did not ignore any constitutional restraint;
(2) it did not violate any fundamental right; and (3) its method had a
reasonable relationship with the result sought to be attained. By
examining Rule XV, the Court did not allow its jurisdiction to be
defeated by the mere invocation of the principle of separation of
powers.154
xxx
In the Philippine setting, there is a more compelling reason for
courts to categorically reject the political question defense when
its interposition will cover up abuse of power. For section 1,
Article VIII of our Constitution was intentionally cobbled to
empower courts "x x x to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government." This power is new and was not granted to our courts
in the 1935 and 1972 Constitutions. It was not also xeroxed from
the US Constitution or any foreign state constitution. The
CONCOM granted this enormous power to our courts in view of
our experience under martial law where abusive exercises of
state power were shielded from judicial scrutiny by the misuse of
the political question doctrine. Led by the eminent former Chief
Justice Roberto Concepcion, the CONCOM expanded and sharpened
the checking powers of the judiciary vis--vis the Executive and the
Legislative departments of government.155
xxx
The Constitution cannot be any clearer. What it granted to this Court
is not a mere power which it can decline to exercise. Precisely to
deter this disinclination, the Constitution imposed it as a duty of
this Court to strike down any act of a branch or instrumentality
of government or any of its officials done with grave abuse of
discretion amounting to lack or excess of jurisdiction. Rightly or
wrongly, the Constitution has elongated the checking powers of this
Court against the other branches of government despite their more
democratic character, the President and the legislators being elected
by the people.156
xxx
The provision defining judicial power as including the 'duty of the
courts of justice. . . to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government' constitutes
the capstone of the efforts of the Constitutional Commission to
upgrade the powers of this court vis--vis the other branches of
government. This provision was dictated by our experience under
martial law which taught us that a stronger and more independent
judiciary is needed to abort abuses in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul acts of
government committed with grave abuse of discretion, the new
Constitution transformed this Court from passivity to activism. This
transformation, dictated by our distinct experience as nation, is not
merely evolutionary but revolutionary.Under the 1935 and the 1973
Constitutions, this Court approached constitutional violations by
initially determining what it cannot do; under the 1987 Constitution,
there is a shift in stress this Court is mandated to approach
constitutional violations not by finding out what it should not do
but what it must do. The Court must discharge this solemn duty by
not resuscitating a past that petrifies the present.
I urge my brethren in the Court to give due and serious consideration
to this new constitutional provision as the case at bar once more calls
us to define the parameters of our power to review violations of the
rules of the House. We will not be true to our trust as the last
bulwark against government abuses if we refuse to exercise this
new power or if we wield it with timidity. To be sure, it is this
exceeding timidity to unsheathe the judicial sword that has
increasingly emboldened other branches of government to
denigrate, if not defy, orders of our courts. In Tolentino, I endorsed
the view of former Senator Salonga that this novel provision stretching
the latitude of judicial power is distinctly Filipino and its interpretation
should not be depreciated by undue reliance on inapplicable foreign
jurisprudence. In resolving the case at bar, the lessons of our own
history should provide us the light and not the experience of
foreigners.157 (Italics in the original emphasis and underscoring
supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant
petitions. Here, the third parties alleging the violation of private rights and the
Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v. US158 as
basis for arguing that this Court may not decide on the constitutionality of
Sections 16 and 17 of the House Impeachment Rules. As already observed,
the U.S. Federal Constitution simply provides that "the House of
Representatives shall have the sole power of impeachment." It adds nothing
more. It gives no clue whatsoever as to how this "sole power" is to be
exercised. No limitation whatsoever is given. Thus, the US Supreme Court
concluded that there was a textually demonstrable constitutional commitment
of a constitutional power to the House of Representatives. This reasoning does
not hold with regard to impeachment power of the Philippine House of
Representatives since our Constitution, as earlier enumerated, furnishes
several provisions articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment
Rules which state that impeachment proceedings are deemed initiated (1) if
there is a finding by the House Committee on Justice that the verified complaint
and/or resolution is sufficient in substance, or (2) once the House itself affirms
or overturns the finding of the Committee on Justice that the verified complaint
and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives
of a verified complaint or a resolution of impeachment by at least 1/3 of the
members of the House thus clearly contravene Section 3 (5) of Article XI as
they give the term "initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the
impeachment complaint and referral to the House Committee on Justice, the
initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes
clear. Once an impeachment complaint has been initiated in the foregoing
manner, another may not be filed against the same official within a one year
period following Article XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former
President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven
associate justices of this Court, on June 2, 2003 and referred to the House
Committee on Justice on August 5, 2003, the second impeachment complaint
filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella
against the Chief Justice on October 23, 2003 violates the constitutional
prohibition against the initiation of impeachment proceedings against the same
impeachable officer within a one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a
phenomenon that takes the center stage of our individual and collective
consciousness as a people with our characteristic flair for human drama,
conflict or tragedy. Of course this is not to demean the seriousness of the
controversy over the Davide impeachment. For many of us, the past two weeks
have proven to be an exasperating, mentally and emotionally exhausting
experience. Both sides have fought bitterly a dialectical struggle to articulate
what they respectively believe to be the correct position or view on the issues
involved. Passions had ran high as demonstrators, whether for or against the
impeachment of the Chief Justice, took to the streets armed with their familiar
slogans and chants to air their voice on the matter. Various sectors of society
- from the business, retired military, to the academe and denominations of faith
offered suggestions for a return to a state of normalcy in the official relations
of the governmental branches affected to obviate any perceived resulting
instability upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment
had been constituted, this Court was specifically asked, told, urged and argued
to take no action of any kind and form with respect to the prosecution by the
House of Representatives of the impeachment complaint against the subject
respondent public official. When the present petitions were knocking so to
speak at the doorsteps of this Court, the same clamor for non-interference was
made through what are now the arguments of "lack of jurisdiction," "non-
justiciability," and "judicial self-restraint" aimed at halting the Court from any
move that may have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the
question of the constitutionality of initiating the impeachment complaint against
Chief Justice Davide is concerned. To reiterate what has been already
explained, the Court found the existence in full of all the requisite conditions
for its exercise of its constitutionally vested power and duty of judicial review
over an issue whose resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the land. What lies in
here is an issue of a genuine constitutional material which only this Court can
properly and competently address and adjudicate in accordance with the clear-
cut allocation of powers under our system of government. Face-to-face thus
with a matter or problem that squarely falls under the Court's jurisdiction, no
other course of action can be had but for it to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the
process of impeachment has effectively set up a regime of judicial supremacy,
is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved
on the merits only the main issue of whether the impeachment proceedings
initiated against the Chief Justice transgressed the constitutionally imposed
one-year time bar rule. Beyond this, it did not go about assuming jurisdiction
where it had none, nor indiscriminately turn justiciable issues out of decidedly
political questions. Because it is not at all the business of this Court to assert
judicial dominance over the other two great branches of the government.
Rather, the raison d'etre of the judiciary is to complement the discharge by the
executive and legislative of their own powers to bring about ultimately the
beneficent effects of having founded and ordered our society upon the rule of
law.
It is suggested that by our taking cognizance of the issue of constitutionality of
the impeachment proceedings against the Chief Justice, the members of this
Court have actually closed ranks to protect a brethren. That the members'
interests in ruling on said issue is as much at stake as is that of the Chief
Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has long
held and been entrusted with the judicial power to resolve conflicting legal
rights regardless of the personalities involved in the suits or actions. This Court
has dispensed justice over the course of time, unaffected by whomsoever
stood to benefit or suffer therefrom, unfraid by whatever imputations or
speculations could be made to it, so long as it rendered judgment according to
the law and the facts. Why can it not now be trusted to wield judicial power in
these petitions just because it is the highest ranking magistrate who is involved
when it is an incontrovertible fact that the fundamental issue is not him but the
validity of a government branch's official act as tested by the limits set by the
Constitution? Of course, there are rules on the inhibition of any member of the
judiciary from taking part in a case in specified instances. But to disqualify this
entire institution now from the suit at bar is to regard the Supreme Court as
likely incapable of impartiality when one of its members is a party to a case,
which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any legal
system which recognizes equality of all men before the law as essential to the
law's moral authority and that of its agents to secure respect for and obedience
to its commands. Perhaps, there is no other government branch or
instrumentality that is most zealous in protecting that principle of legal equality
other than the Supreme Court which has discerned its real meaning and
ramifications through its application to numerous cases especially of the high-
profile kind in the annals of jurisprudence. The Chief Justice is not above the
law and neither is any other member of this Court. But just because he is the
Chief Justice does not imply that he gets to have less in law than anybody
else. The law is solicitous of every individual's rights irrespective of his station
in life.
The Filipino nation and its democratic institutions have no doubt been put to
test once again by this impeachment case against Chief Justice Hilario Davide.
Accordingly, this Court has resorted to no other than the Constitution in search
for a solution to what many feared would ripen to a crisis in government. But
though it is indeed immensely a blessing for this Court to have found answers
in our bedrock of legal principles, it is equally important that it went through
this crucible of a democratic process, if only to discover that it can resolve
differences without the use of force and aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in
Impeachment Proceedings which were approved by the House of
Representatives on November 28, 2001 are unconstitutional. Consequently,
the second impeachment complaint against Chief Justice Hilario G. Davide,
Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix
William B. Fuentebella with the Office of the Secretary General of the House
of Representatives on October 23, 2003 is barred under paragraph 5, section
3 of Article XI of the Constitution.
SO ORDERED.
Bellosillo and Tinga, JJ., see separate opinion.
Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate
concurring opinion.
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate
opinion of J. Vitug.
Corona, J., will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.
G.R. No. 193459 March 8, 2011
MA. MERCEDITAS N. GUTIERREZ Petitioner,
vs.
THE HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE, RISA
HONTIVEROS-BARAQUEL, DANILO D. LIM, FELIPE PESTAO, EVELYN
PESTAO, RENATO M. REYES, JR., SECRETARY GENERAL OF
BAGONG ALYANSANG MAKABAYAN (BAYAN); MOTHER MARY JOHN
MANANZAN, CO-CHAIRPERSON OF PAGBABAGO; DANILO RAMOS,
SECRETARY-GENERAL OF KILUSANG MAGBUBUKID NG PILIPINAS
(KMP); ATTY. EDRE OLALIA, ACTING SECRETARY GENERAL OF THE
NATIONAL UNION OF PEOPLE'S LAWYERS (NUPL); FERDINAND R.
GAITE, CHAIRPERSON, CONFEDERATION FOR UNITY, RECOGNITION
AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE);
and JAMES TERRY RIDON OF THE LEAGUE OF FILIPINO STUDENTS
(LFS), Respondents.
FELICIANO BELMONTE, JR., Respondent-Intervenor.
RESOLUTION
CARPIO MORALES, J.:
For resolution is petitioners "Motion for Reconsideration (of the Decision dated
15 February 2011)" dated February 25, 2011 (Motion).
Upon examination of the averments in the Motion, the Court finds neither
substantial nor cogent reason to reconsider its Decision. A plain reading of the
Decision could very well dispose of petitioners previous contentions, raised
anew in the Motion, but the Court finds it proper, in writing finis to the issue, to
draw petitioners attention to certain markers in the Decision.
I
Contrary to petitioners assertion that the Court sharply deviated from the ruling
in Francisco, Jr. v. The House of Representatives,1 the Decision of February
15, 2011 reaffirmed and illuminated the Francisco doctrine in light of the
particular facts of the present case.
To argue, as petitioner does, that there never was a simultaneous referral of
two impeachment complaints as they were actually referred to the committee
"separately, one after the other"2 is to dismantle her own interpretation
of Francisco that the one-year bar is to be reckoned from the filing of the
impeachment complaint. Petitioners Motion concedes3 that
the Francisco doctrine on the initiation of an impeachment proceeding includes
the Houses initial action on the complaint. By recognizing the legal import of
a referral, petitioner abandons her earlier claim that per Francisco an
impeachment proceeding is initiated by the mere filing of an impeachment
complaint.
Having uprooted her reliance on the Francisco case in propping her position
that the initiation of an impeachment proceeding must be reckoned from the
filing of the complaint, petitioner insists on actual initiation and not
"constructive initiation by legal fiction" as averred by Justice Adolfo Azcuna in
his separate opinion in Francisco.
In Justice Azcunas opinion which concurred with the majority, what he
similarly found untenable was the stretching of the reckoning point of initiation
to the time that the Committee on Justice (the Committee) report reaches the
floor of the House.4 Notably, the provisions of the Impeachment Rules of the
12th Congress that were successfully challenged in Francisco provided that
an impeachment proceeding was to be "deemed initiated" upon the
Committees finding of sufficiency of substance or upon the Houses
affirmance or overturning of the Committees finding,5 which was clearly
referred to as the instances "presumably for internal purposes of the House,
as to the timing of some of its internal action on certain relevant
matters."6 Definitely, "constructive initiation by legal fiction" did not refer to the
aspects of filing and referral in the regular course of impeachment, for this was
precisely the gist of Francisco in pronouncing what initiation means.
The Court adhered to the Francisco-ordained balance in the tug-of-war
between those who want to stretch and those who want to shrink the term
"initiate," either of which could disrupt the provisions congruency to the
rationale of the constitutional provision. Petitioners imputation that the Courts
Decision presents a sharp deviation from Francisco as it defers the operability
of the one-year bar rule rings hollow.
Petitioner urges that the word "initiate" must be read in its plain, ordinary and
technical meaning, for it is contrary to reason, logic and common sense to
reckon the beginning or start of the initiation process from its end or
conclusion.
Petitioner would have been correct had the subject constitutional provision
been worded as "no initiation processof the impeachment proceeding shall be
commenced against the same official more than once within a period of one
year," in which case the reckoning would literally point to the "start of the
beginning." To immediately reckon the initiation to what petitioner herself
concedes as the start of the initiation process is to countenance a raw or half-
baked initiation.
In re-affirming what the phrase "no impeachment proceedings shall be
initiated" means, the Court closely appliedFrancisco on what comprises or
completes the initiation phase. Nothing can be more unequivocal or well-
defined than the elucidation of filing-and-referral in Francisco. Petitioner must
come to terms with her denial of the exact terms of Francisco.
Petitioner posits that referral is not an integral or indispensable part of the
initiation of impeachment proceedings, in case of a direct filing of a verified
complaint or resolution of impeachment by at least one-third of all the Members
of the House.7
The facts of the case do not call for the resolution of this issue however. Suffice
it to restate a footnote in the Courts Decision that in such case of "an
abbreviated mode of initiation[, x x x] the filing of the complaint and the taking
of initial action [House directive to automatically transmit] are merged into a
single act."8 Moreover, it is highly impossible in such situation to coincidentally
initiate a second impeachment proceeding in the interregnum, if any, given the
period between filing and referral.
Petitioners discussion on the singular tense of the word "complaint" is too
tenuous to require consideration. The phraseology of the one-year bar rule
does not concern itself with a numerical limitation of impeachment complaints.
If it were the intention of the framers of the Constitution to limit the number of
complaints, they would have easily so stated in clear and unequivocal
language.
Petitioner further avers that the demonstrated concerns against reckoning the
period from the filing of the complaint are mere possibilities based on a general
mistrust of the Filipino people and their Representatives. To her, mere
possibility of abuse is not a conclusive argument against the existence of
power nor a reason to invalidate a law.
The present case does not involve an invalidation of a legal provision on
a grant of power. Since the issue precisely involves upholding an
express limitation of a power, it behooves the Court to look into the rationale
behind the constitutional proscription which guards against an explicit instance
of abuse of power. The Courts duty entails an examination of the same
possible scenarios considered by the framers of the Constitution (i.e., incidents
that may prove to disrupt the law-making function of Congress and unduly or
too frequently harass the impeachable officer), which are basically the same
grounds being invoked by petitioner to arrive at her desired conclusion.
Ironically, petitioner also offers the Court with various possibilities and vivid
scenarios to grimly illustrate her perceived oppression. And her
own mistrust leads her to find inadequate the existence of the pertinent
constitutional provisions, and to entertain doubt on "the respect for and
adherence of the House and the respondent committee to the same."9
While petitioner concedes that there is a framework of safeguards for
impeachable officers laid down in Article XI of the Constitution, she downplays
these layers of protection as illusory or inutile without implementation and
enforcement, as if these can be disregarded at will.1avvphi1
Contrary to petitioners position that the Court left in the hands of the House
the question as to when an impeachment proceeding is initiated, the Court
merely underscored the Houses conscious role in the initiation of an
impeachment proceeding. The Court added nothing new in pinpointing the
obvious reckoning point of initiation in light of the Francisco doctrine.
Moreover, referral of an impeachment complaint to the appropriate committee
is already a power or function granted by the Constitution to the House.
Petitioner goes on to argue that the House has no discretion on the matter of
referral of an impeachment complaint and that once filed, an impeachment
complaint should, as a matter of course, be referred to the Committee.
The House cannot indeed refuse to refer an impeachment complaint that is
filed without a subsisting bar. To refer an impeachment complaint within an
existing one-year bar, however, is to commit the apparently unconstitutional
act of initiating a second impeachment proceeding, which may be struck down
under Rule 65 for grave abuse of discretion. It bears recalling that the one-
year bar rule itself is a constitutional limitation on the Houses power or function
to refer a complaint.
Tackling on the House floor in its order of business a clearly constitutionally-
prohibited second impeachment complaint on the matter of whether to make
the appropriate referral goes precisely into the propriety of the referral and not
on the merits of the complaint. The House needs only to ascertain the
existence or expiry of the constitutional ban of one year, without any regard to
the claims set forth in the complaint.
To petitioner, the intervening days from the filing of the complaint to whatever
completes the initiation of an impeachment proceeding is immaterial in
mitigating the influx of successive complaints since allowing multiple
impeachment charges would result to the same harassment and oppression.
She particularly cites Constitutional Commissioner Ricardo Romulos
concerns on the amount of time spent if "multiple impeachment charges"10 are
allowed. She fails, however, to establish whether Commissioner Romulo
limited or quantified his reference to not more than one complaint or charge.
IN SUM, the Court did not deviate from, as it did apply the twin rule of filing
and referral in the present case, withFrancisco as the guiding light. Petitioner
refuses to see the other half of that light, however.
II
Petitioner, meanwhile, reiterates her argument that promulgation means
publication. She again cites her thesis that Commonwealth Act No. 638, Article
2 of the Civil Code, and the two Taada v. Tuvera11 cases mandate that the
Impeachment Rules be published for effectivity. Petitioner raises nothing new
to change the Courts stance on the matter.
To reiterate, when the Constitution uses the word "promulgate," it does not
necessarily mean to publish in the Official Gazette or in a newspaper of
general circulation. Promulgation, as used in Section 3(8), Article XI of the
Constitution, suitably takes the meaning of "to make known" as it should be
generally understood.
Petitioner continues to misapply Neri v. Senate Committee on Accountability
of Public Officers and Investigations12 where the Court noted that the
Constitution unmistakably requires the publication of rules of procedure
pertaining to inquiries in aid of legislation. If the Constitution warranted the
publication of Impeachment Rules, then it could have expediently indicated
such requirement as it did in the case of legislative inquiries.
The Constitution clearly gives the House a wide discretion on how to effectively
promulgate its Impeachment Rules. It is not for this Court to tell a co-equal
branch of government on how to do so when such prerogative is lodged
exclusively with it.
Still, petitioner argues that the Court erred when it ruled that "to require
publication of the House Impeachment Rules would only delay the
impeachment proceedings and cause the House of Representatives to violate
constitutionally mandated periods" She insists that the Committee, after
publishing the Impeachment Rules, would still have a remainder of 45 days
out of the 60-day period within which to finish its business.
Petitioner is mistaken in her assertion. Note that the Court discussed the
above-mentioned scenario only "in cases where impeachment complaints are
filed at the start of each Congress." Section 3, Article XI of the Constitution
contains relevant self-executing provisions which must be observed at the start
of the impeachment process, the promulgation of the Impeachment Rules WHEREFORE, the Motion for Reconsideration is DENIED for lack of merit.
notwithstanding.
SO ORDERED.
Petitioner rehashes her allegations of bias and vindictiveness on the part of
the Committee Chairperson, Rep. Niel Tupas, Jr. Yet again, the supposed CONCHITA CARPIO MORALES
actuations of Rep. Tupas partake of a keen performance of his avowed duties Associate Justice
and responsibilities as the designated manager of that phase in the
impeachment proceeding. Besides, the actions taken by the Committee were WE CONCUR:
never its Chairpersons sole act but rather the collective undertaking of its
whole 55-person membership. The Committee members even took to voting
among themselves to validate what actions to take on the motions presented RENATO C. CORONA
to the Committee. Chief Justice

Indubitably, an impeachment is not a judicial proceeding, but rather a political

(NO PART)
exercise. Petitioner thus cannot demand that the Court apply the stringent ANTONIO T. CARPIO PRESBITERO J.
standards it asks of justices and judges when it comes to inhibition from VELASCO, JR.*
Associate Justice
hearing cases. Incidentally, the Impeachment Rules do not provide for any
Associate Justice
provision regarding the inhibition of the Committee chairperson or any member
from participating in an impeachment proceeding. The Committee may thus
direct any question of partiality towards the concerned member only. And any ANTONIO EDUARDO B.
ARTURO D. BRION
decision on the matter of inhibition must be respected, and it is not for this NACHURA
Associate Justice
Court to interfere with that decision. Associate Justice

Except for the constitutionally mandated periods, the pacing or alleged TERESITA J.
precipitate haste with which the impeachment proceeding against petitioner is DIOSDADO M. PERALTA
LEONARDO-DE CASTRO
conducted is beyond the Courts control. Again, impeachment is a highly Associate Justice
Associate Justice
politicized intramural that gives the House ample leg room to operate, subject
only to the constitutionally imposed limits.13 And beyond these, the Court is
LUCAS P. BERSAMIN ROBERTO A. ABAD
duty-bound to respect the discretion of a co-equal branch of government on
Associate Justice Associate Justice
matters which would effectively carry out its constitutional mandate.

FINALLY, the Court has, in its February 15, 2011 Decision, already lifted its MARIANO C. DEL MARTIN S. VILLARAMA,
September 14, 2010 Status Quo Ante Order14 which, as said Order clearly CASTILLO JR.
stated, was "effective immediately and continuing until further orders from this Associate Justice Associate Justice
Court."15 Such "further order" points to that part of the disposition in the
February 15, 2011 Decision that directs the lifting of the Status Quo Ante JOSE CATRAL
Order. JOSE PORTUGAL PEREZ
MENDOZA
Associate Justice
Associate Justice
The lifting of the Status Quo Ante Order is effective immediately, the filing of
petitioners motion for reconsideration notwithstanding, in the same way that
the Status Quo Ante Order was made effective immediately, respondents MARIA LOURDES P. A. SERENO
moves to reconsider or recall it notwithstanding. There is thus no faulting the Associate Justice
Committee if it decides to, as it did proceed with the impeachment proceeding
after the Court released its February 15, 2011 Decision. CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the
conclusions in the above Resolution had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA
ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA &
CARMEN PEDROSA, in their capacities as founding members of the
People's Initiative for Reforms, Modernization and Action
(PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG
KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI),
INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG
DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition
under Rule 65 of the Rules of Court is the right of the people to directly propose
amendments to the Constitution through the system of initiative under Section
2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special
attention, as this system of initiative was unknown to the people of this country,
except perhaps to a few scholars, before the drafting of the 1987 Constitution.
The 1986 Constitutional Commission itself, through the original
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 RE-
EXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE
HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-
413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G.
BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a
Comment 16 which starts off with an assertion that the instant petition is a
"knee-jerk reaction to a draft 'Petition for Initiative on the 1987 Constitution'. .
. which is not formally filed yet." What he filed on 6 December 1996 was an
"Initiatory Pleading" or "Initiatory Petition," which was legally necessary to start
the signature campaign to amend the Constitution or to put the movement to
gather signatures under COMELEC power and function. On the substantive
allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No.
6735, which governs the conduct of initiative to amend the
Constitution. The absence therein of a subtitle for such initiative is not
fatal, since subtitles are not requirements for the validity or sufficiency
of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the
proposition in an initiative to amend the Constitution approved by the
majority of the votes cast in the plebiscite shall become effective as of
the day of the plebiscite.
 (3) The claim that COMELEC Resolution No. 2300 is ultra vires is
contradicted by (a) Section 2, Article IX-C of the Constitution, which
grants the COMELEC the power to enforce and administer all laws
and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A.
6735, which empowers the COMELEC to promulgate such rules and
regulations as may be necessary to carry out the purposes of the Act.
(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 judicial or ministerial, are without or in excess of its or his jurisdiction,
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
 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.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be
represented by at least three per centum of the registered
voters therein. No amendment under this section shall be
authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a member
of the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate.
Thus, although this mode of amending the Constitution is a
mode of amendment which bypasses congressional action, in
the last analysis it still is dependent on congressional action.
Bluntly stated, the right of the people to directly propose amendments
to the Constitution through the system of initiative would remain
entombed in the cold niche of the Constitution until Congress provides
for its implementation. Stated otherwise, while the Constitution has
recognized or granted that right, the people cannot exercise it if
Congress, for whatever reason, does not provide for its
implementation.
This system of initiative was originally included in Section 1 of the draft Article
on Amendment or Revision proposed by the Committee on Amendments and
Transitory Provisions of the 1986 Constitutional Commission in its Committee
Report No. 7 (Proposed Resolution No. 332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(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.
xxx xxx xxx
First, on Section 1 on the matter of initiative upon
petition of at least 10 percent, there are no details in
the provision on how to carry this out. Do we
understand, therefore, that we are leaving this matter
to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore,
that for as long as the legislature does not pass the
necessary implementing law on this, this will not
operate?
MR. SUAREZ. That matter was also taken up during
the committee hearing, especially with respect to the
budget appropriations which would have to be
legislated so that the plebiscite could be called. We
deemed it best that this matter be left to the
legislature. The Gentleman is right. In any event, as
envisioned, no amendment through the power of
initiative can be called until after five years from the
date of the ratification of this Constitution. Therefore,
the first amendment that could be proposed through
the exercise of this initiative power would be after five
years. It is reasonably expected that within that five-
year period, the National Assembly can come up with
the appropriate rules governing the exercise of this
power.
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.
MS. AQUINO. Do I understand from the sponsor that
the intention in the proposal is to vest constituent
power in the people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam
President.
MS. AQUINO. I fully concur with the underlying
precept of the proposal in terms of institutionalizing
popular participation in the drafting of the Constitution
or in the amendment thereof, but I would have a lot of
difficulties in terms of accepting the draft of Section 2,
as written. Would the sponsor agree with me that in
the hierarchy of legal mandate, constituent power has
primacy over all other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam
President.
MS. AQUINO. And would the sponsor agree with me
that in the hierarchy of legal values, the Constitution
is source of all legal mandates and that therefore we
require a great deal of circumspection in the drafting
and in the amendments of the Constitution?
 MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the
primacy of constituent power we have a separate
article in the constitution that would specifically cover
the process and the modes of amending the
Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as
the provisions are drafted now, to again concede to
the legislature the process or the requirement of
determining the mechanics of amending the
Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could
very well be placed in the hands of the National
Assembly, not unless we can incorporate into this
provision the mechanics that would adequately cover
all the conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section 2
is limited to proposals to AMEND not to REVISE the Constitution; thus:
MR. SUAREZ. . . . This proposal was suggested on
the theory that this matter of initiative, which came
about because of the extraordinary developments this
year, has to be separated from the traditional modes
of amending the Constitution as embodied in Section
1. The committee members felt that this system of
initiative should not extend to the revision of the entire
Constitution, so we removed it from the operation of
Section 1 of the proposed Article on Amendment or
Revision. 34
xxx xxx xxx
MS. AQUINO. In which case, I am seriously bothered
by providing this process of initiative as a separate
section in the Article on Amendment. Would the
sponsor be amenable to accepting an amendment in
terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up
as another separate section as if it were a self-
executing provision?
MR. SUAREZ. We would be amenable except that,
as we clarified a while ago, this process of initiative is
limited to the matter of amendment and should not
expand into a revision which contemplates a total
overhaul of the Constitution. That was the sense that
was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was
attempting to distinguish the coverage of modes (a)
and (b) in Section 1 to include the process of revision;
whereas 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
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
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"?
MR. DAVIDE. No, it does not, because
"amendments" and "revision" should be covered by
Section 1. So insofar as initiative is concerned, it can
only relate to "amendments" not "revision." 38
Commissioner Davide further emphasized that the process of proposing
amendments through initiative must be more rigorous and difficult than the
initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under
this proposal, what is involved is an amendment to
the Constitution. To amend a Constitution would
ordinarily require a proposal by the National
Assembly by a vote of three-fourths; and to call a
constitutional convention would require a higher
number. Moreover, just to submit the issue of calling
a constitutional convention, a majority of the National
Assembly is required, the import being that the
process of amendment must be made more rigorous
and difficult than probably initiating an ordinary
legislation or putting an end to a law proposed by the
National Assembly by way of a referendum. I cannot
agree to reducing the requirement approved by the
Committee on the Legislative because it would
require another voting by the Committee, and the
voting as precisely based on a requirement of 10
 percent. Perhaps, I might present such a proposal, by
way of an amendment, when the Commission shall
take up the Article on the Legislative or on the
National Assembly on plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to
amendments, and the final version, which the Commission approved by a vote
of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as
amended, reads as follows: "AMENDMENT TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE
UPON A PETITION OF AT LEAST TWELVE PERCENT OF
THE TOTAL NUMBER OF REGISTERED VOTERS, OF
WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN
FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE
YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS
RIGHT. 40
The entire proposed Article on Amendments or Revisions was
approved on second reading on 9 July 1986.41 Thereafter, upon his
motion for reconsideration, Commissioner Gascon was allowed to
introduce an amendment to Section 2 which, nevertheless, was
withdrawn. In view thereof, the Article was again approved on Second
and Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2
be amended by changing "percent" to "per centum" and "thereof" to "therein"
and deleting the phrase "by law" in the second paragraph so that said
paragraph reads: The Congress 43 shall provide for the implementation of the
exercise of this right. 44 This amendment was approved and is the text of the
present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the
Constitution under Section 2 of Article XVII of the Constitution is not self-
executory.
Has Congress "provided" for the implementation of the exercise of this right?
Those who answer the question in the affirmative, like the private respondents
and intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise
of the right than through the passage of a statute or legislative act. This is the
essence or rationale of the last minute amendment by the Constitutional
Commission to substitute the last paragraph of Section 2 of Article XVII then
reading:
The Congress 45 shall by law provide for the implementation
of the exercise of this right. with
The Congress shall provide for the implementation of the
exercise of this right.
This substitute amendment was an investiture on Congress of a power
to provide for the rules implementing the exercise of the right. The
"rules" means "the details on how [the right] is to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is a
consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was
prepared by the Committee on Suffrage and Electoral Reforms of the House
of Representatives on the basis of two House Bills referred to it, viz., (a) House
Bill No. 497, 47 which dealt with the initiative and referendum mentioned in
Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No.
988, 48 which dealt with the subject matter of House Bill No. 497, as well as
with initiative and referendum under Section 3 of Article X (Local Government)
and initiative provided for in Section 2 of Article XVII of the Constitution. Senate
Bill No. 17 49 solely dealt with initiative and referendum concerning ordinances
or resolutions of local government units. The Bicameral Conference
Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a
draft bill, which was subsequently approved on 8 June 1989 by the
Senate 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;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one
hundred (100) words which shall be legibly written or printed
at the top of every page of the petition. (Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved
or rejected, amended or repealed" only strengthens the conclusion
that Section 2, quoted earlier, excludes initiative on amendments to
the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum
(Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is
provided for initiative on the Constitution. This conspicuous silence as to the
latter simply means that the main thrust of the Act is initiative and referendum
on national and local laws. If Congress intended R.A. No. 6735 to fully provide
for the implementation of the initiative on amendments to the Constitution, it
could have provided for a subtitle therefor, considering that in the order of
things, the primacy of interest, or hierarchy of values, the right of the people to
directly propose amendments to the Constitution is far more important than
the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the
Constitution is subsumed under the subtitle on National Initiative and
Referendum because it is national in scope. Our reading of Subtitle II (National
Initiative and Referendum) and Subtitle III (Local Initiative and Referendum)
leaves no room for doubt that the classification is not based on the scope of
the initiative involved, but on its nature and character. It is "national initiative,"
if what is proposed to be adopted or enacted is a national law, or a law which
only Congress can pass. It is "local initiative" if what is proposed to be adopted
or enacted is a law, ordinance, or resolution which only the legislative bodies
of the governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of initiative
into national and local is actually based on Section 3 of the Act, which we quote
for emphasis and clearer understanding:
Sec. 3. Definition of terms
xxx xxx xxx
There are three (3) systems of initiative, namely:
 a.1 Initiative on the Constitution which refers to a petition
proposing amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing
to enact a national legislation; and
a.3 Initiative on local legislation which refers to a petition
proposing to enact a regional, provincial, city, municipal, or
barangay law, resolution or ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should have been
a subtitle on initiative on amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not accurate.
Provisions not germane to the subtitle on National Initiative and Referendum
are placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution
approved by the majority of the votes cast in the plebiscite
shall become effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by
majority of the votes cast in an election called for the purpose
shall become effective fifteen (15) days after certification and
proclamation of the Commission. (Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative
with the legislative bodies of local governments; thus:
Sec. 11. Indirect Initiative. Any duly accredited people's
organization, as defined by law, may file a petition for indirect
initiative with the House of Representatives, and other
legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the
COMELEC on the findings of sufficiency or insufficiency of the petition
for initiative or referendum, which could be petitions for both national
and 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
55
(f) The effects of the approval or rejection of the proposition.
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of registered
voters for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon, and the
invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the
local government unit concerned as to whether the required number of
signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the
proposition to the registered voters for their approval, which must be within the
period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A.
No. 6735, in all of its twenty-three sections, merely (a) mentions, the word
"Constitution" in Section 2; (b) defines "initiative on the Constitution" and
includes it in the enumeration of the three systems of initiative in Section 3; (c)
speaks of "plebiscite" as the process by which the proposition in an initiative
on the Constitution may be approved or rejected by the people; (d) reiterates
the constitutional requirements as to the number of voters who should sign the
petition; and (e) provides for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the
paramount system of initiative. RA. No. 6735 thus delivered a humiliating blow
to the system of initiative on amendments to the Constitution by merely paying
it a reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative
on amendments to the Constitution is concerned. Its lacunae on this
substantive matter are fatal and cannot be cured by "empowering" the
COMELEC "to promulgate such rules and regulations as may be necessary to
carry out the purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed
in a Latin maxim: potestas delegata non delegari potest. 59 The recognized
exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article
VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of
Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial
functions, to promulgate rules and regulations is a form of delegation of
legislative authority under no. 5 above. However, in every case of permissible
delegation, there must be a showing that the delegation itself is valid. It is valid
only if the law (a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate; and (b) fixes a standard
the limits of which are sufficiently determinate and determinable to which
the delegate must conform in the performance of his functions. 61 A sufficient
standard is one which defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned,
R.A. No. 6735 miserably failed to satisfy both requirements in subordinate
legislation. The delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES
RULES AND REGULATIONS ON THE CONDUCT OF INITIATIVE
ON AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly
propose amendments to the Constitution through the system of initiative. It
does not have that power under R.A. No. 6735. Reliance on the COMELEC's
power under Section 2(1) of Article IX-C of the Constitution is misplaced, for
the laws and regulations referred to therein are those promulgated by the
COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law
where subordinate legislation is authorized and which satisfies the
"completeness" and the "sufficient standard" tests.
IV
 COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN
PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with
the power of Congress to implement the right to initiate constitutional
amendments, or that it has validly vested upon the COMELEC the power of
subordinate legislation and that COMELEC Resolution No. 2300 is valid, the
COMELEC acted without jurisdiction or with grave abuse of discretion in
entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No.
6735, a petition for initiative on the Constitution must be signed by at least 12%
of the total number of registered voters of which every legislative district is
represented by at least 3% of the registered voters therein. The Delfin Petition
does not contain signatures of the required number of voters. Delfin himself
admits that he has not yet gathered signatures and that the purpose of his
petition is primarily to obtain assistance in his drive to gather signatures.
Without the required signatures, the petition cannot be deemed validly
initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its
filing. The petition then is 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.
Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and
Torres, Jr., JJ., concur.
Padilla, J., took no part.
Separate Opinions
PUNO, J., concurring and dissenting:
I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice
Davide insofar as it orders the COMELEC to dismiss the Delfin petition. I
regret, however, I cannot share the view that R.A. No. 5735 and COMELEC
Resolution No. 2300 are legally defective and cannot implement the people's
initiative to amend the Constitution. I likewise submit that the petition with
respect to the Pedrosas has no leg to stand on and should be dismissed. With
due respect:
I
First, I submit that R.A. No. 6735 sufficiently implements the right of the people
to initiate amendments to the Constitution thru initiative. Our effort to discover
the meaning of R.A. No. 6735 should start with the search of the intent of our
lawmakers. A knowledge of this intent is critical for the intent of the legislature
is the law and the controlling factor in its interpretation. 1 Stated otherwise,
intent is the essence of the law, the spirit which gives life to its enactment. 2
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was
intended to cover initiative to propose amendments to the Constitution." It
ought to be so for this intent is crystal clear from the history of the law which
was a consolidation of House Bill No. 21505 3 and Senate Bill No. 17. 4 Senate
Bill No. 17 was entitled "An Act Providing for a System of Initiative and
Referendum and the Exception Therefrom, Whereby People in Local
Government Units Can Directly Propose and Enact Resolutions and
Ordinances or Approve or Reject any Ordinance or Resolution Passed by the
Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include
people's initiative to propose amendments to the Constitution. In checkered
contrast, House Bill No. 21505 5 expressly included people's initiative to amend
the Constitution. Congressman (now Senator) Raul Roco emphasized in his
sponsorship remarks: 6
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ROCO
At the outset, Mr. Roco provided the following backgrounder
on the constitutional basis of the proposed measure.
1. As cited in Vera vs. Avelino (1946), the presidential system
which was introduced by the 1935 Constitution saw the
application of the principle of separation of powers.
2. While under the parliamentary system of the 1973
Constitution the principle remained applicable, the 1981
amendments to the Constitution of 1973 ensured presidential
dominance over the Batasang Pambansa.
Constitutional history then saw the shifting and sharing of
legislative powers between the Legislature and the Executive
departments. Transcending changes in the exercise of
legislative power is the declaration in the Philippine
Constitution that the Philippines is a republican state where
sovereignty resides in the people and all sovereignty
emanates from them.
3. Under the 1987 Constitution, the lawmaking power is still
preserved in Congress; however, to institutionalize direct
action of the people as exemplified in the 1986 Revolution, the
Constitution recognizes the power of the people, through the
system of initiative and referendum.
As cited in Section 1, Article VI of the 1987 Constitution,
Congress does not have plenary powers since reserve
powers are given to the people expressly. Section 32 of the
same Article mandates Congress to pass at the soonest
possible time, a bill on referendum and initiative, and to share
its legislative powers with the people.
Section 2, Article XVII of the 1987 Constitution, on the other
hand, vests in the people the power to directly propose
amendments to the Constitution through initiative, upon
petition of at least 12 percent of the total number of registered
voters.
Stating that House Bill No. 21505 is the Committee's response
to the duty imposed on Congress to implement the exercise
by the people of the right to initiative and referendum, Mr.
Roco recalled the beginnings of the system of initiative and
referendum under Philippine Law. He cited Section 99 of the
Local Government Code which vests in the barangay
assembly the power to initiate legislative processes, decide
the holding of plebiscite and hear reports of the Sangguniang
Barangay, all of which are variations of the power of initiative
and referendum. He added that the holding of barangay
plebiscites and referendum are likewise provided in Sections
100 and 101 of the same Code.
Thereupon, for the sake of brevity, Mr. Roco moved that
pertinent quotation on the subject which he will later submit to
the Secretary of the House be incorporated as part of his
sponsorship speech.
He then cited examples of initiative and referendum similar to
those contained in the instant Bill among which are the
constitutions of states in the United States which recognize
the right of registered voters to initiate the enactment of any
statute or to project any existing law or parts thereof in a
referendum. These states, he said, are Alaska, Alabama,
Montana, Massachusets, Dakota, Oklahoma, Oregon, and
practically all other states.
Mr. Roco explained that in certain American states, the kind
of laws to which initiative and referendum apply is also without
limitation, except for emergency measures, which are likewise
incorporated in House Bill No. 21505. He added that the
procedure provided by the Bill from the filing of the petition,
the requirements of a certain percentage of supporters to
present a proposition, to the submission to electors are
substantially similar to the provisions in American laws.
Although an infant in Philippine political structure, the system
of initiative and referendum, he said, is a tried and tested
system in other jurisdictions, and the Bill is patterned after
American experience.
He further explained that the bill has only 12 sections, and
recalled that the Constitutional Commissioners saw the
system of the initiative and referendum as an instrument
which can be used should the legislature show itself to be
indifferent to the needs of the people. This is the reason, he
claimed, why now is an opportune time to pass the Bill even
as he noted the felt necessity of the times to pass laws which
are necessary to safeguard individual rights and liberties.
At this juncture Mr. Roco explained the process of initiative
and referendum as advocated in House Bill No. 21505. He
stated that:
1. Initiative means that the people, on their own political
judgment, submit a Bill for the consideration of the general
electorate.
2. The instant Bill provides three kinds of initiative, namely;
the initiative to amend the Constitution once every five years;
the initiative to amend statutes approved by Congress; and
the initiative to amend local ordinances.
3. The instant Bill gives a definite procedure and allows the
Commission on Elections (COMELEC) to define rules and
regulations on the power of initiative.
4. Referendum means that the legislators seek the consent of
the people on measures that they have approved.
5. Under Section 4 of the Bill the people can initiate a
referendum which is a mode of plebiscite by presenting a
petition therefor, but under certain limitations, such as the
signing of said petition by at least 10 percent of the total of
registered voters at which every legislative district is
represented by at least three percent of the registered voters
thereof. Within 30 days after receipt of the petition, the
COMELEC shall determine the sufficiency of the petition,
publish the same, and set the date of the referendum within
45 to 90-day period.
6. When the matter under referendum or initiative is approved
by the required number of votes, it shall become effective 15
days following the completion of its publication in the Official
Gazette.
In concluding his sponsorship remarks, Mr. Roco stressed
that the Members cannot ignore the people's call for initiative
and referendum and urged the Body to approve House Bill
No. 21505.
At this juncture, Mr. Roco also requested that the prepared
text of his speech together with the footnotes be reproduced
as part of the Congressional Records.
The same sentiment as to the bill's intent to implement people's
initiative to amend the Constitution was stressed by then
Congressman (now Secretary of Agriculture) Salvador Escudero III in
his sponsorship remarks, viz: 7
 xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ESCUDERO
Mr. Escudero first pointed out that the people have been
clamoring for a truly popular democracy ever since, especially
in the so-called parliament of the streets. A substantial
segment of the population feels, he said, that the form of
democracy is there, but not the reality or substance of it
because of the increasingly elitist approach of their
representatives to the country's problem.
Whereupon, Mr. Escudero pointed out that the Constitution
has provided a means whereby the people can exercise the
reserved power of initiative to propose amendments to the
Constitution, and requested that Sections 1 and 32, Article VI;
Section 3, Article X; and Section 2, Article XVII of the
Constitution be made part of his sponsorship remarks.
Mr. Escudero also stressed that an implementing law is
needed for the aforecited Constitutional provisions. While the
enactment of the Bill will give way to strong competition
among cause-oriented and sectoral groups, he continued, it
will hasten the politization of the citizenry, aid the government
in forming an enlightened public opinion, and produce more
responsive legislation. The passage of the Bill will also give
street parliamentarians the opportunity to articulate their ideas
in a democratic forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped for the early
approval of the Bill so that it can be initially used for the
Agrarian Reform Law. He said that the passage of House Bill
No. 21505 will show that the Members can set aside their
personal and political consideration for the greater good of the
people.
The disagreeing provisions in Senate Bill No. 17 and House Bill No.
21505 were threshed out in a Bicameral Conference Committee. 8 In
the meeting of the Committee on June 6, 1989, 9 the members agreed
that the two (2) bills should be consolidated and that the consolidated
version should include people's initiative to amend the Constitution as
contemplated by House Bill No. 21505. The transcript of the meeting
states:
xxx xxx xxx
CHAIRMAN GONZALES. But at any rate, as I have
said, because this is new in our political system, the
Senate decided on a more cautious approach and
limiting it only to the local government units because
even with that stage where . . . at least this has been
quite popular, ano? It has been attempted on a
national basis. Alright. There has not been a single
attempt. Now, so, kami limitado doon. And, second,
we consider also that it is only fair that the local
legislative body should be given a chance to adopt
the legislation bill proposed, right? Iyong sinasabing
indirect system of initiative. If after all, the local
legislative assembly or body is willing to adopt it in full
or in toto, there ought to be any reason for initiative,
ano for initiative. And, number 3, we feel that there
should be some limitation on the frequency with which
it should be applied. Number 4, na the people, thru
initiative, cannot enact any ordinance that is beyond
the scope of authority of the local legislative body,
otherwise, my God, mag-aassume sila ng power that
is broader and greater than the grant of legislative
power to the Sanggunians. And Number 5, because
of that, then a proposition which has been the result
of a successful initiative can only carry the force and
effect of an ordinance and therefore that should not
deprive the court of its jurisdiction to declare it null and
void for want of authority. Ha, di ba? I mean it is
beyond powers of local government units to enact.
Iyon ang main essence namin, so we concentrated on
that. And that is why . . . so ang sa inyo naman
includes iyon sa Constitution, amendment to the
Constitution eh . . . national laws. Sa amin, if you insist
on that, alright, although we feel na it will in effect
become a dead statute. Alright, and we can agree, we
can agree. So ang mangyayari dito, and magiging
basic nito, let us not discuss anymore kung alin and
magiging basic bill, ano, whether it is the Senate Bill
or whether it is the House bill. Logically it should be
ours sapagkat una iyong sa amin eh. It is one of the
first bills approved by the Senate kaya ang number
niyan, makikita mo, 17, eh. Huwag na nating
pagusapan. Now, if you insist, really iyong features ng
national at saka constitutional, okay. ____ gagawin
na natin na consolidation of both bills.
HON. ROCO. Yes, we shall consolidate.
 CHAIRMAN GONZALES. Consolidation of the
Senate and House Bill No. so and so. 10
When the consolidated bill was presented to the House for approval,
then Congressman Roco upon interpellation by Congressman Rodolfo
Albano, again confirmed that it covered people's initiative to amend
the Constitution. The record of the House Representative states: 11
xxx xxx xxx
THE SPEAKER PRO TEMPORE. The Gentleman
from Camarines Sur is recognized.
MR. ROCO. On the Conference Committee Report
on the disagreeing provisions between Senate Bill
No. 21505 which refers to the system providing for the
initiative and referendum, fundamentally, Mr.
Speaker, we consolidated the Senate and the House
versions, so both versions are totally intact in the bill.
The Senators ironically provided for local initiative
and referendum and the House Representatives
correctly provided for initiative and referendum on the
Constitution and on national legislation.
I move that we approve the consolidated bill.
MR. ALBANO. Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the
pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished sponsor answer
just a few questions?
THE SPEAKER PRO TEMPORE. The Gentlemen will
please proceed.
MR. ALBANO. I heard the sponsor say that the only
difference in the two bills was that in the Senate
version there was a provision for local initiative and
referendum, whereas the House version has none.
MR. ROCO. In fact, the Senate version provide purely
for local initiative and referendum, whereas in the
House version, we provided purely for national and
constitutional legislation.
MR. ALBANO. Is it our understanding therefore, that
the two provisions were incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete
initiative and referendum both in the constitutional
amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal
resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in
consonance with the provision of the Constitution
whereby it mandates this Congress to enact the
enabling law, so that we shall have a system which
can be done every five years. Is it five years in the
provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For
constitutional amendments in the 1987 Constitution,
it is every five years.
MR. ALBANO. For every five years, Mr. Speaker?
MR. ROCO. Within five years, we cannot have
multiple initiatives and referenda.
MR. ALBANO. Therefore, basically, there was no
substantial difference between the two versions?
MR. ROCO. The gaps in our bill were filled by the
Senate which, as I said earlier, ironically was about
local, provincial and municipal legislation.
MR. ALBANO. And the two bills were consolidated?
 MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. Thank you, Mr. Speaker.
APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)
THE SPEAKER PRO TEMPORE. There was a motion to
approve this consolidated bill on Senate Bill No. 17 and House
Bill No. 21505.
Is there any objection? (Silence. The Chair hears none; the
motion is approved.
Since it is crystalline that the intent of R.A. No. 6735 is to implement
the people's initiative to amend the Constitution, it is our bounden duty
to interpret the law as it was intended by the legislature. We have ruled
that once intent is ascertained, it must be enforced even if it may not
be consistent with the strict letter of the law and this ruling is as old as
the mountain. We have also held that where a law is susceptible of
more than one interpretation, that interpretation which will most tend
to effectuate the manifest intent of the legislature will be adopted. 12
The text of R.A. No. 6735 should therefore be reasonably construed to
effectuate its intent to implement the people's initiative to amend the
Constitution. To be sure, we need not torture the text of said law to reach the
conclusion that it implements people's initiative to amend the Constitution. R.A.
No. 6735 is replete with references to this prerogative of the people.
First, the policy statement declares:
Sec. 2. Statement of Policy. The power of the people under
a system of initiative and referendum to directly propose,
enact, approve or reject, in whole or in part, the Constitution,
laws, ordinances, or resolutions passed by any legislative
body upon compliance with the requirements of this Act is
hereby affirmed, recognized and guaranteed. (emphasis
supplied)
Second, the law defines "initiative" as "the power of the people to propose
amendments to the constitution or to propose and enact legislations through
an election called for the purpose," and "plebiscite" as "the electoral process
by which an initiative on the Constitution is approved or rejected by the people.
Third, the law provides the requirements for a petition for initiative to amend
the Constitution. Section 5(b) states that "(a) petition for an initiative on the
1987 Constitution must have at least twelve per centum (12%) of the total
number of registered voters as signatories, of which every legislative district
must be represented by at least threeper centum (3%) of the registered voters
therein." It also states that "(i)nitiative on the Constitution may be exercised
only after five (5) years from the ratification of the 1987 Constitution and only
once every five (5) years thereafter.
Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b)
states that "(t)he proposition in an initiative on the Constitution approved by a
majority of the votes cast in the plebiscite shall become effective as to the day
of the plebiscite.
It is unfortunate that the majority decision resorts to a strained interpretation of
R.A. No. 6735 to defeat its intent which it itself concedes is to implement
people's initiative to propose amendments to the Constitution. Thus, it laments
that the word "Constitution" is neither germane nor relevant to the policy thrust
of section 2 and that the statute's subtitling is not accurate. These lapses are
to be expected for laws are not always written in impeccable English. Rightly,
the Constitution does not require our legislators to be word-smiths with the
ability to write bills with poetic commas like Jose Garcia Villa or in lyrical prose
like Winston Churchill. But it has always been our good policy not to refuse to
effectuate the intent of a law on the ground that it is badly written. As the
distinguished Vicente Francisco 13 reminds us: "Many laws contain words
which have not been used accurately. But the use of inapt or inaccurate
language or words, will not vitiate the statute if the legislative intention can be
ascertained. The same is equally true with reference to awkward, slovenly, or
ungrammatical expressions, that is, such expressions and words will be
construed as carrying the meaning the legislature intended that they bear,
although such a construction necessitates a departure from the literal meaning
of the words used.
In the same vein, the argument that R.A. No. 7535 does not include people's
initiative to amend the Constitution simply because it lacks a sub-title on the
subject should be given the weight of helium. Again, the hoary rule in statutory
construction is that headings prefixed to titles, chapters and sections of a
statute may be consulted in aid of interpretation, but inferences drawn
therefrom are entitled to very little weight, and they can never control the plain
terms of the enacting clauses. 14
All said, it is difficult to agree with the majority decision that refuses to enforce
the manifest intent or spirit of R.A. No. 6735 to implement the people's initiative
to amend the Constitution. It blatantly disregards the rule cast in concrete that
the letter of the law must yield to its spirit for the letter of the law is its body but
its spirit is its soul. 15
 II
COMELEC Resolution No. 2300, 16 promulgated under the stewardship of
Commissioner Haydee Yorac, then its Acting Chairman, spelled out the
procedure on how to exercise the people's initiative to amend the Constitution.
This is in accord with the delegated power granted by section 20 of R.A. No.
6735 to the COMELEC which expressly states: "The Commission is hereby
empowered to promulgate such rules and regulations as may be necessary to
carry out the purposes of this Act." By no means can this delegation of power
be assailed as infirmed. In the benchmark case of Pelaez v. Auditor
General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down
the test to determine whether there is undue delegation of legislative
power, viz:
xxx xxx xxx
Although Congress may delegate to another branch of the
Government the power to fill details in the execution, enforcement or
administration of a law, it is essential, to forestall a violation of the
principle of separation of powers, that said law: (a) be complete in itself
it must set forth therein the policy to be executed, carried out or
implemented by the delegate and (b) to fix standard the limits of
which are sufficiently determinate or determinable to which the
delegate must conform in the performance of his functions. Indeed,
without a statutory declaration of policy, which is the essence of every
law, and, without the aforementioned standard, there would be no
means to determine, with reasonable certainty, whether the delegate
has acted within or beyond the scope of his authority. Hence, he could
thereby arrogate upon himself the power, not only to make the law,
but, also and this is worse to unmake it, by adopting measures
inconsistent with the end sought to be attained by the Act of Congress,
thus nullifying the principle of separation of powers and the system of
checks and balances, and, consequently, undermining the very
foundation of our republican system.
Section 68 of the Revised Administrative Code does not meet these
well-settled requirements for a valid delegation of the power to fix the
details in the enforcement of a law. It does not enunciate any policy to
be carried out or implemented by the President. Neither does it give a
standard sufficiently precise to avoid the evil effects above referred to.
R.A. No. 6735 sufficiently states the policy and the standards to guide the
COMELEC in promulgating the law's implementing rules and regulations of the
law. As aforestated, section 2 spells out the policy of the law; viz: "The power
of the people under a system of initiative and referendum to directly propose,
enact, approve or reject, in whole or in part, the Constitution, laws, ordinances,
or resolutions passed by any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized and guaranteed."
Spread out all over R.A. No. 6735 are the standards to canalize the delegated
power to the COMELEC to promulgate rules and regulations from overflowing.
Thus, the law states the number of signatures necessary to start a people's
initiative, 18 directs how initiative proceeding is commenced, 19 what the
COMELEC should do upon filing of the petition for initiative, 20 how a
proposition is approved, 21 when a plebiscite may be held, 22 when the
amendment takes effect 23 and what matters may not be the subject of any
initiative. 24 By any measure, these standards are adequate.
Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard
is intended to map out the boundaries of the delegates' authority by defining
the legislative policy and indicating the circumstances under which it is to be
pursued and effected. The purpose of the sufficient standard is to prevent a
total transference of legislative power from the lawmaking body to the
delegate." 25 In enacting R.A. No. 6735, it cannot be said that Congress totally
transferred its power to enact the law implementing people's initiative to
COMELEC. A close look at COMELEC Resolution No. 2300 will show that it
merely provided the procedure to effectuate the policy of R.A. No. 6735 giving
life to the people's initiative to amend the Constitution. The debates 26 in the
Constitutional Commission make it clear that the rules of procedure to enforce
the people's initiative can be delegated, thus:
MR. ROMULO. Under Commissioner Davide's amendment, it
is possible for the legislature to set forth certain procedures to
carry out the initiative. . . ?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does not
prevent the legislature from asking another body to set the
proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words,
the implementation of this particular right would be subject to
legislation, provided the legislature cannot determine
anymore the percentage of the requirement.
MR. DAVIDE. As long as it will not destroy the substantive
right to initiate. In other words, none of the procedures to be
 proposed by the legislative body must diminish or impair the
right conceded here.
MR. ROMULO. In that provision of the Constitution can the
procedures which I have discussed be legislated?
MR. DAVIDE. Yes.
In his book, The Intent of the 1986 Constitution Writers, 27 Father
Bernas likewise affirmed: "In response to questions of Commissioner
Romulo, Davide explained the extent of the power of the legislature
over the process: it could for instance, prescribe the 'proper form
before (the amendment) is submitted to the people,' it could authorize
another body to check the proper form. It could also authorize the
COMELEC, for instance, to check the authenticity of the signatures of
petitioners. Davide concluded: 'As long as it will not destroy the
substantive right to initiate. In other words, none of the procedures to
be proposed by the legislative body must diminish or impair the right
conceded here.'" Quite clearly, the prohibition against the legislature
is to impair the substantive right of the people to initiate amendments
to the Constitution. It is not, however, prohibited from legislating the
procedure to enforce the people's right of initiative or to delegate it to
another body like the COMELEC with proper standard.
A survey of our case law will show that this Court has prudentially refrained
from invalidating administrative rules on the ground of lack of adequate
legislative standard to guide their promulgation. As aptly perceived by former
Justice Cruz, "even if the law itself does not expressly pinpoint the standard,
the courts will bend backward to locate the same elsewhere in order to spare
the statute, if it can, from constitutional infirmity." 28 He cited the ruling
in Hirabayashi v. United States, 29 viz:
xxx xxx xxx
It is true that the Act does not in terms establish a particular
standard to which orders of the military commander are to
conform, or require findings to be made as a prerequisite to
any order. But the Executive Order, the Proclamations and the
statute are not to be read in isolation from each other. They
were parts of a single program and must be judged as such.
The Act of March 21, 1942, was an adoption by Congress of
the Executive Order and of the Proclamations. The
Proclamations themselves followed a standard authorized by
the Executive Order the necessity of protecting military
resources in the designated areas against espionage and
sabotage.
In the case at bar, the policy and the standards are bright-lined in R.A.
No. 6735. A 20-20 look at the law cannot miss them. They were not
written by our legislators in invisible ink. The policy and standards can
also be found in no less than section 2, Article XVII of the Constitution
on Amendments or Revisions. There is thus no reason to hold that the
standards provided for in R.A. No. 6735 are insufficient for in other
cases we have upheld as adequate more general standards such as
30 31
"simplicity and dignity," "public interest," "public
32 33
welfare," "interest of law and order," "justice and
equity," 34 "adequate and efficient instruction," 35"public
safety," 36 "public policy", 37 "greater national interest", 38 "protect the
local consumer by stabilizing and subsidizing domestic pump
rates", 39 and "promote simplicity, economy and efficiency in
government." 40 A due regard and respect to the legislature, a co-equal
and coordinate branch of government, should counsel this Court to
refrain from refusing to effectuate laws unless they are clearly
unconstitutional.
III
It is also respectfully submitted that the petition should he dismissed with
respect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly
baseless. The records show that the case at bar started when respondent
Delfin alone and by himself filed with the COMELEC a Petition to Amend the
Constitution to Lift Term Limits of Elective Officials by People's Initiative. The
Pedrosas did not join the petition. It was Senator Roco who moved to intervene
and was allowed to do so by the COMELEC. The petition was heard and
before the COMELEC could resolve the Delfin petition, the case at bar was
filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding
members of the People's Initiative for Reform, Modernization and Action
(PIRMA). The suit is an original action for prohibition with prayer for temporary
restraining order and/or writ of preliminary injunction.
The petition on its face states no cause of action against the Pedrosas. The
only allegation against the Pedrosas is that they are founding members of the
PIRMA which proposes to undertake the signature drive for people's initiative
to amend the Constitution. Strangely, the PIRMA itself as an organization was
not impleaded as a respondent. Petitioners then prayed that we order the
Pedrosas ". . . to desist from conducting a signature drive for a people's
initiative to amend the Constitution." On December 19, 1996, we temporarily
enjoined the Pedrosas ". . . from conducting a signature drive for people's
initiative to amend the Constitution." It is not enough for the majority to lift the
temporary restraining order against the Pedrosas. It should dismiss the petition
and all motions for contempt against them without equivocation.
One need not draw a picture to impart the proposition that in soliciting
signatures to start a people's initiative to amend the Constitution the Pedrosas
are not engaged in any criminal act. Their solicitation of signatures is a right
guaranteed in black and white by section 2 of Article XVII of the Constitution
which provides that ". . . amendments to this Constitution may likewise be
directly proposed by the people through initiative. . ." This right springs from
the principle proclaimed in section 1, Article II of the Constitution that in a
democratic and republican state "sovereignty resides in the people and all
government authority emanates from them." The Pedrosas are part of the
people and their voice is part of the voice of the people. They may constitute
but a particle of our sovereignty but no power can trivialize them for
sovereignty is indivisible.
But this is not all. Section 16 of Article XIII of the Constitution provides: "The
right of the people and their organizations to effective and reasonable
participation at all levels of social, political and economic decision-making shall
not be abridged. The State shall by law, facilitate the establishment of
adequate consultation mechanisms." This is another novel provision of the
1987 Constitution strengthening the sinews of the sovereignty of our people.
In soliciting signatures to amend the Constitution, the Pedrosas are
participating in the political decision-making process of our people. The
Constitution says their right cannot be abridged without any ifs and buts. We
cannot put a question mark on their right.
Over and above these new provisions, the Pedrosas' campaign to amend the
Constitution is an exercise of their freedom of speech and expression and their
right to petition the government for redress of grievances. We have
memorialized this universal right in all our fundamental laws from the Malolos
Constitution to the 1987 Constitution. We have iterated and reiterated in our
rulings that freedom of speech is a preferred right, the matrix of other important
rights of our people. Undeniably, freedom of speech enervates the essence of
the democratic creed of think and let think. For this reason, the Constitution
encourages speech even if it protects the speechless.
It is thus evident that the right of the Pedrosas to solicit signatures to start a
people's initiative to amend the Constitution does not depend on any law,
much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no
Constitution can chain the people to an undesirable status quo. To be sure,
there are no irrepealable laws just as there are no irrepealable Constitutions.
Change is the predicate of progress and we should not fear change. Mankind
has long recognized the truism that the only constant in life is change and so
should the majority.
IV
In a stream of cases, this Court has rhapsodized people power as expanded
in the 1987 Constitution. On October 5, 1993, we observed that people's might
is no longer a myth but an article of faith in our Constitution. 41 On September
30, 1994, we postulated that people power can be trusted to check excesses
of government and that any effort to trivialize the effectiveness of people's
initiatives ought to be rejected. 42 On September 26, 1996, we pledged that ".
. . this Court as a matter of policy and doctrine will exert every effort to nurture,
protect and promote their legitimate exercise."43 Just a few days ago, or on
March 11, 1997, by a unanimous decision, 44 we allowed a recall election in
Caloocan City involving the mayor and ordered that he submits his right to
continue in office to the judgment of the tribunal of the people. Thus far, we
have succeeded in transforming people power from an opaque abstraction to
a robust reality. The Constitution calls us to encourage people empowerment
to blossom in full. The Court cannot halt any and all signature campaigns to
amend the Constitution without setting back the flowering of people
empowerment. More important, the Court cannot seal the lips of people who
are pro-change but not those who are anti-change without concerting the
debate on charter change into a sterile talkaton. Democracy is enlivened by a
dialogue and not by a monologue for in a democracy nobody can claim any
infallibility.
Melo and Mendoza, JJ., concur.
VITUG, J., concurring and dissenting:
The COMELEC should have dismissed, outrightly, the Delfin Petition.
It does seem to me that there is no real exigency on the part of the Court to
engross, let alone to commit, itself on all the issues raised and debated upon
by the parties. What is essential at this time would only be to resolve whether
or not the petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in
his capacity as a "founding member of the Movement for People's Initiative"
and seeking through a people initiative certain modifications on the 1987
Constitution, can properly be regarded and given its due course. The
Constitution, relative to any proposed amendment under this method, is
explicit. Section 2, Article XVII, thereof provides:
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
 centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification
of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of
this right.
The Delfin petition is thus utterly deficient. Instead of complying with the
constitutional imperatives, the petition would rather have much of its burden
passed on, in effect, to the COMELEC. The petition would require COMELEC
to schedule "signature gathering all over the country," to cause the necessary
publication of the petition "in newspapers of general and local circulation," and
to instruct "Municipal Election Registrars in all Regions of the Philippines to
assist petitioners and volunteers in establishing signing stations at the time
and on the dates designated for the purpose.
I submit, even then, that the TRO earlier issued by the Court which,
consequentially, is made permanent under the ponencia should be held to
cover only the Delfin petition and must not be so understood as having
intended or contemplated to embrace the signature drive of the Pedrosas. The
grant of such a right is clearly implicit in the constitutional mandate on people
initiative.
The distinct greatness of a democratic society is that those who reign are the
governed themselves. The postulate is no longer lightly taken as just a
perceived myth but a veritable reality. The past has taught us that the vitality
of government lies not so much in the strength of those who lead as in the
consent of those who are led. The role of free speech is pivotal but it can only
have its true meaning if it comes with the correlative end of being heard.
Pending a petition for a people's initiative that is sufficient in form and
substance, it behooves the Court, I most respectfully submit, to yet refrain from
resolving the question of whether or not Republic Act No. 6735 has effectively
and sufficiently implemented the Constitutional provision on right of the people
to directly propose constitutional amendments. Any opinion or view formulated
by the Court at this point would at best be only a non-binding, albeit possibly
persuasive, obiter dictum.
I vote for granting the instant petition before the Court and for clarifying that
the TRO earlier issued by the Court did not prescribe the exercise by the
Pedrosas of their right to campaign for constitutional amendments.
FRANCISCO, J., dissenting and concurring:
There is no question that my esteemed colleague Mr. Justice Davide has
prepared a scholarly and well-written ponencia. Nonetheless, I cannot fully
subscribe to his view that R. A. No. 6735 is inadequate to cover the system of
initiative on amendments to the Constitution.
To begin with, sovereignty under the constitution, resides in the people and all
government authority emanates from them. 1 Unlike our previous constitutions,
the present 1987 Constitution has given more significance to this declaration
of principle for the people are now vested with power not only to propose, enact
or reject any act or law passed by Congress or by the local legislative body,
but to propose amendments to the constitution as well. 2 To implement these
constitutional edicts, Congress in 1989 enacted Republic Act No. 6735,
otherwise known as "The initiative and Referendum Act". This law, to my mind,
amply covers an initiative on the constitution. The contrary view maintained by
petitioners is based principally on the alleged lack of sub-title in the law on
initiative to amend the constitution and on their allegation that:
Republic Act No. 6735 provides for the effectivity of the law
after publication in print media. [And] [t]his indicates that
Republic Act No. 6735 covers only laws and not constitutional
amendments, because constitutional amendments take effect
upon ratification not after publication. 3
which allegation manifests petitioners' selective interpretation of the
law, for under Section 9 of Republic Act No. 6735 on the Effectivity of
Initiative or Referendum Proposition paragraph (b) thereof is clear in
providing that:
The proposition in an initiative on the constitution approved by a majority of
the votes cast in the plebiscite shall become effective as to the day of the
plebiscite.
It is a rule that every part of the statute must be interpreted with reference the
context, i.e., that every part of the statute must be construed together with the
other parts and kept subservient to the general intent of the whole
enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be
interpreted in isolation. The legislative intent behind every law is to be
extracted from the statute as a whole. 5
In its definition of terms, Republic Act No. 6735 defines initiative as "the power
of the people to propose amendments to the constitution or to propose and
enact legislations through an election called for the purpose". 6The same
section, in enumerating the three systems of initiative, included an "initiative
on the constitution which refers to a petition proposing amendments to the
constitution" 7 Paragraph (e) again of Section 3 defines "plebiscite" as
"the electoral process by which an initiative on the constitution is approved or
rejected by the people" And as to the material requirements for an initiative on
the Constitution, Section 5(b) distinctly enumerates the following:
A petition for an initiative on the 1987 Constitution must have
at least twelve per centum (12%) of the total number of the
registered voters as signatories, of which every legislative
district must be represented by at least three per centum (3%)
of the registered voters therein. Initiative on the constitution
may be exercised only after five (5) years from the ratification
of the 1987 Constitution and only once every five years
thereafter.
These provisions were inserted, on purpose, by Congress the intent
being to provide for the implementation of the right to propose an
amendment to the Constitution by way of initiative. "A legal provision",
the Court has previously said, "must not be construed as to be a
useless surplusage, and accordingly, meaningless, in the sense of
adding nothing to the law or having no effect whatsoever
thereon". 8 That this is the legislative intent is further shown by the
deliberations in Congress, thus:
. . . More significantly, in the course of the consideration of the
Conference Committee Report on the disagreeing provisions
of Senate Bill No. 17 and House Bill No. 21505, it was noted:
MR. ROCO. On the Conference Committee Report
on the disagreeing provisions between Senate Bill
No. 17 and the consolidated House Bill No. 21505
which refers to the system providing for the initiative
and referendum, fundamentally, Mr. Speaker, we
consolidated the Senate and the House versions, so
both versions are totally intact in the bill. The Senators
ironically provided for local initiative and referendum
and the House of Representatives correctly provided
for initiative and referendum an the Constitution and
on national legislation.
I move that we approve the consolidated bill.
MR. ALBANO, Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the
pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished sponsor answer
just a few questions?
THE SPEAKER PRO TEMPORE. What does the
sponsor say?
MR. ROCO. Willingly, Mr. Speaker.
THE SPEAKER PRO TEMPORE. The Gentleman will
please proceed.
MR. ALBANO. I heard the sponsor say that the only
difference in the two bills was that in the Senate
version there was a provision for local initiative and
referendum, whereas the House version has none.
MR. ROCO. In fact, the Senate version provided
purely for local initiative and referendum, whereas in
the House version, we provided purely for national
and constitutional legislation.
MR. ALBANO. Is it our understanding, therefore, that
the two provisions were incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete
initiative and referendum both in the constitutional
amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal
resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in
consonance with the provision of the Constitution to
enact the enabling law, so that we shall have a
system which can be done every five years. Is it five
years in the provision of the Constitution?
 MR. ROCO. That is correct, Mr. Speaker. For
constitutional amendments to the 1987 Constitution,
it is every five years." (Id. [Journal and Record of the
House of Representatives], Vol. VIII, 8 June 1989, p.
960; quoted in Garcia v. Comelec, 237 SCRA 279,
292-293 [1994]; emphasis supplied)
. . . The Senate version of the Bill may not have
comprehended initiatives on the Constitution. When
consolidated, though, with the House version of the Bill and
as approved and enacted into law, the proposal included
initiative on both the Constitution and ordinary laws. 9
Clearly then, Republic Act No. 6735 covers an initiative on the
constitution. Any other construction as what petitioners foist upon the
Court constitute a betrayal of the intent and spirit behind the
enactment.
At any rate, I agree with the ponencia that the Commission on Elections, at
present, cannot take any action (such as those contained in the Commission's
orders dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative
of its having already assumed jurisdiction over private respondents' petition.
This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would
appear that proof of procurement of the required percentage of registered
voters at the time the petition for initiative is filed, is a jurisdictional requirement.
Thus:
A petition for an initiative on the 1987 Constitution must have
at least twelve per centum (12%) of the total number of
registered voters as signatories, of which every legislative
district must be represented by at least three per centum (3%)
of the registered voters therein. Initiative on the Constitution
may be exercised only after five (5) years from the ratification
of the 1987 Constitution and only once every five (5) years
thereafter.
Here private respondents' petition is unaccompanied by the required
signatures. This defect notwithstanding, it is without prejudice to the
refiling of their petition once compliance with the required percentage
is satisfactorily shown by private respondents. In the absence,
therefore, of an appropriate petition before the Commission on
Elections, any determination of whether private respondents' proposal
constitutes an amendment or revision is premature.
ACCORDINGLY, I take exception to the conclusion reached in
the ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a
people's initiative to propose amendments to the Constitution. I, however,
register my concurrence with the dismissal, in the meantime, of private
respondents' petition for initiative before public respondent Commission on
Elections until the same be supported by proof of strict compliance with
Section 5 (b) of R.A. No. 6735.
Melo and Mendoza, JJ., concur.
PANGANIBAN, J., concurring and dissenting:
Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the
majority, holds that:
(1) The Comelec acted without jurisdiction or with grave abuse of discretion in
entertaining the "initiatory" Delfin Petition.
(2) While the Constitution allows amendments to "be directly proposed by the
people through initiative," there is no implementing law for the purpose. RA
6735 is "incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned."
(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and
regulations on the conduct of initiative on amendments to the Constitution, is
void."
I concur with the first item above. Until and unless an initiatory petition can
show the required number of signatures in this case, 12% of all the
registered voters in the Philippines with at least 3% in every legislative district
no public funds may be spent and no government resources may be used
in an initiative to amend the Constitution. Verily, the Comelec cannot even
entertain any petition absent such signatures. However, I dissent most
respectfully from the majority's two other rulings. Let me explain.
Under the above restrictive holdings espoused by the Court's majority, the
Constitution cannot be amended at all through a people's initiative. Not by
Delfin, not by Pirma, not by anyone, not even by all the voters of the country
acting together. This decision will effectively but unnecessarily curtail, nullify,
abrogate and render inutile the people's right to change the basic law. At the
very least, the majority holds the right hostage to congressional discretion on
whether to pass a new law to implement it, when there is already one existing
at present. This right to amend through initiative, it bears stressing, is
guaranteed by Section 2, Article XVII of the Constitution, as follows:
Sec. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be
represented by at least three per centum of the registered
voters therein. No amendment under this section shall be
authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
With all due respect, I find the majority's position all too sweeping and all too
extremist. It is equivalent to burning the whole house to exterminate the rats,
and to killing the patient to relieve him of pain. What Citizen Delfin wants the
Comelec to do we should reject. But we should not thereby preempt any future
effort to exercise the right of initiative correctly and judiciously. The fact that
the Delfin Petition proposes a misuse of initiative does not justify a ban against
its proper use. Indeed, there is a right way to do the right thing at the right time
and for the right reason.
Taken Together and Interpreted Properly, the Constitution, RA 6735
and Comelec Resolution 2300 Are Sufficient to Implement
Constitutional Initiatives
While RA 6735 may not be a perfect law, it was as the majority openly
concedes intended by the legislature to cover and, I respectfully submit, it
contains enough provisions to effectuate an initiative on the Constitution. 1 I
completely agree with the inspired and inspiring opinions of Mr. Justice
Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco
law on initiative, sufficiently implements the right of the people to initiate
amendments to the Constitution. Such views, which I shall no longer repeat
nor elaborate on, are thoroughly consistent with this Court's unanimous en
banc rulings in Subic Bay Metropolitan Authority vs. Commission on
Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to
effectuate their purposes, to facilitate and not hamper the exercise by the
voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any
"effort to trivialize the effectiveness of people's initiatives ought to be rejected."
No law can completely and absolutely cover all administrative details. In
recognition of this, RA 6735 wisely empowered 4 the Commission on Election
"to promulgate such rules and regulations as may be necessary to carry out
the purposes of this Act." And pursuant thereto, the Comelec issued its
Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was
promulgated "to govern the conduct of initiative on the Constitution and
initiative and referendum on national and local laws," not by the incumbent
Commission on Elections but by one then composed of Acting Chairperson
Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres
R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these
Commissioners who signed Resolution 2300 have retired from the
Commission, and thus we cannot ascribe any vile motive unto them, other than
an honest, sincere and exemplary effort to give life to a cherished right of our
people.
The majority argues that while Resolution 2300 is valid in regard to national
laws and local legislations, it is void in reference to constitutional amendments.
There is no basis for such differentiation. The source of and authority for the
Resolution is the same law, RA 6735.
I respectfully submit that taken together and interpreted properly and liberally,
the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec
Resolution 2300 provide more than sufficient authority to implement,
effectuate and realize our people's power to amend the Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
I am glad the majority decided to heed our plea to lift the temporary restraining
order issued by this Court on 18 December 1996 insofar as it prohibited
Petitioner Delfin and the Spouses Pedrosa from exercising their right of
initiative. In fact, I believe that such restraining order as against private
respondents should not have been issued, in the first place. While I agree that
the Comelec should be stopped from using public funds and government
resources to help them gather signatures, I firmly believe that this Court has
no power to restrain them from exercising their right of initiative. The right to
propose amendments to the Constitution is really a species of the right of free
speech and free assembly. And certainly, it would be tyrannical and despotic
to stop anyone from speaking freely and persuading others to conform to
his/her beliefs. As the eminent Voltaire once said, "I may disagree with what
you say, but I will defend to the death your right to say it." After all, freedom is
not really for the thought we agree with, but as Justice Holmes wrote, "freedom
for the thought that we hate." 5
Epilogue
By way of epilogue, let me stress the guiding tenet of my Separate Opinion.
Initiative, like referendum and recall, is a new and treasured feature of the
Filipino constitutional system. All three are institutionalized legacies of the
world-admired EDSA people power. Like elections and plebiscites, they are
hallowed expressions of popular sovereignty. They are sacred democratic
rights of our people to be used as their final weapons against political
excesses, opportunism, inaction, oppression and misgovernance; as well as
their reserved instruments to exact transparency, accountability and
faithfulness from their chosen leaders. While on the one hand, their misuse
and abuse must be resolutely struck down, on the other, their legitimate
exercise should be carefully nurtured and zealously protected.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al.
and to DIRECT Respondent Commission on Elections to DISMISS the Delfin
Petition on the ground of prematurity, but not on the other grounds relied upon
by the majority. I also vote to LIFT the temporary restraining order issued on
18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and
Carmen Pedrosa from exercising their right to free speech in proposing
amendments to the Constitution.
Melo and Mendoza, JJ., concur.
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. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965
and
L-35979, decided on January 22, 1973, to which We will hereafter refer
collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered, from
which We quote:
On March 16, 1967, Congress of the Philippines passed
Resolution No. 2, which was amended by Resolution No. 4 of
said body, adopted on June 17, 1969, calling a Convention to
propose amendments to the Constitution of the Philippines.
Said Resolution No. 2, as amended, was implemented by
Republic Act No. 6132, approved on August 24, 1970,
pursuant to the provisions of which the election of delegates
to said Convention was held on November 10, 1970, and the
1971 Constitutional Convention began to perform its functions
on June 1, 1971. While the Convention was in session on
September 21, 1972, the President issued Proclamation No.
1081 placing the entire Philippines under Martial Law. On
November 29, 1972, the Convention approved its Proposed
Constitution of the Republic of the Philippines. The next day,
November 30, 1972, the President of the Philippines issued
Presidential Decree No. 73, "submitting to the Filipino people
for ratification or rejection the Constitution of the Republic of
the Philippines proposed by the 1971 Constitutional
Convention, and appropriating funds therefor," as well as
setting the plebiscite for said ratification or rejection of the
Proposed Constitution on January 15, 1973.
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. L-35979).
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."
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.]

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:
"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:

"6. That the President subsequently announced the issuance [1] Do you like the New Society?
of Presidential Decree No. 86 organizing the so-called
Citizens Assemblies, to be consulted on certain public
[2] Do you like the reforms under martial law?
questions [Bulletin Today, January 1, 1973];

[3] Do you like Congress again to hold sessions?

"7. That thereafter it was later announced that "the
Assemblies will be asked if they favor or oppose
[4] Do you like the plebiscite to be held later?
[1] The New Society;
[5] Do you like the way President Marcos running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an
[2] Reforms instituted under Martial Law;
additional question.]
[3] The holding of a plebiscite on the proposed new Constitution and
when (the tentative new dates given following the postponement of the
 "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. L-
35948 to file "file an answer to the said motion not later than
4 P.M., Tuesday, January 16, 1973," and setting the motion
for hearing "on January 17, 1973, at 9:30 a.m." While the case
was being heard, on the date last mentioned, at noontime, the
Secretary of Justice called on the writer of this opinion and
said that, upon instructions of the President, he (the Secretary
of Justice) was delivering to him (the writer) a copy of
Proclamation No. 1102, which had just been signed by the
President. Thereupon, the writer returned to the Session Hall
and announced to the Court, the parties in G.R. No. L-35948
inasmuch as the hearing in connection therewith was still
going on and the public there present that the President
had, according to information conveyed by the Secretary of
Justice, signed said Proclamation No. 1102, earlier that
morning. Thereupon, the writer read Proclamation No. 1102
which is of the following tenor:
"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 forty-three thousand eight
hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to
be called to ratify the new Constitution, fourteen million two hundred
ninety-eight thousand eight hundred fourteen (14,298,814) answered
that there was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a vote in a
plebiscite;
"WHEREAS, since the referendum results show that more than ninety-
five (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng
Mga Barangay has strongly recommended that the new Constitution
should already be deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution,
do hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention
has been ratified by an overwhelming majority of all 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 L-
36165, as motions to dismiss the petitions therein, and to set said cases for
hearing on the same date and time as L-36236. On that date, the parties in
G.R. No. L-36283 10 agreed that the same be, likewise, heard, as it was, in
fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L-36164,
L-36165 and L-36236. The hearing, which began on February 12, 1973,
shortly after 9:30 a.m., was continued not only that afternoon, but, also, on
February 13, 14, 15 and 16, morning and afternoon, after which the parties
were granted up to February 24, 1973, noon, within which to submit their notes
of oral arguments and additional arguments, as well as the documents
required of them or whose presentation was reserved by them. The same
resolution granted the parties until March 1, 1973, to reply to the notes filed by
their respective opponents. Counsel for the petitioners in G.R. Nos. L-36164
and L-36165 filed their aforementioned notes on February 24, 1973, on which
date the Solicitor General sought an extension of time up to March 3, 1973,
within which to file his notes, which was granted, with the understanding that
said notes shall include his reply to the notes already filed by the petitioners in
G.R. Nos. L-36164 a L-36165. Counsel for the petitioners, likewise, moved
and were granted an extension of time, to expire on March 10, 1973, within
which to file, as they did, their notes in reply to those submitted by the Solicitor
General on March 3, 1973. On March 21, 1973, petitioners in 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 political-question theory advanced in
said habeas corpus and plebiscite cases, which were carefully considered by
this Court and found by it to be legally unsound and constitutionally untenable.
As a consequence, Our decision in the aforementioned habeas corpus cases
partakes of the nature and effect of a stare decisis, which gained added weight
by its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of similar
character are justiciable, not political, is plain and simple. One of the principal
bases of the non-justiciability of so-called political questions is the principle of
separation of powers characteristic of the Presidential system of
government the functions of which are classified or divided, by reason of
their nature, into three (3) categories, namely: 1) those involving the making of
laws, which are allocated to the legislative department; 2) those concerned
mainly with the enforcement of such laws and of judicial decisions applying
and/or interpreting the same, which belong to the executive department; and
3) those dealing with the settlement of disputes, controversies or conflicts
involving rights, duties or prerogatives that are legally demandable and
enforceable, which are apportioned to courts of justice. Within its own sphere
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 L-36283 argue that
"(t)he creation of the Citizens' Assemblies as the vehicle for the ratification of
the Constitution was a deception upon the people since the President
announced the postponement of the January 15, 1973 plebiscite to either
February 19 or March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the negative
view have already been set forth earlier in this opinion. Hence, it is
unnecessary to reproduce them here. So it is, with respect to the positions
taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose Roy
although more will be said later about them and by the Solicitor General,
on behalf of the other respondents in that case and the respondents in the
other cases.
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 twenty-
one years of age or over and are able to read and write, and
who shall have resided in the Philippines for one year and in
the municipality wherein they propose to vote for at least six
months preceding the election. The National Assembly shall
extend the right of suffrage to women, if in a plebiscite which
shall be held for that purpose within two years after the
adoption of this Constitution, not less than three hundred
thousand women possessing the necessary qualifications
shall vote affirmatively on the question.
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, twenty-one years of age or over, able to read and write," and
residents the barrio "during the six months immediately preceding election,
duly registered in the list of voters" and " otherwise disqualified ..." just like
the provisions of present and past election codes of the Philippines and Art. V
of the 1935 Constitution "may vote in the plebiscite."
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 well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville County
Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as an
equivalent of "ballots cast." 56
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
facieevidence 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 L-36165,
asserts openly that Art. XV of the Constitution has not been complied with, and
since the alleged substantial compliance with the requirements thereof
partakes of the nature of a defense set up by the other respondents in these
cases, the burden of proving such defense which, if true, should be within
their peculiar knowledge is clearly on such respondents. Accordingly, if
despite the extensive notes and documents submitted by the parties herein,
the members of the Court do not know or are not prepared to say whether or
not the majority of the people or of those who took part in the Citizens'
Assemblies have assented to the proposed Constitution, the logical step would
be to give due course to these cases, require the respondents to file their
answers, and the plaintiffs their reply, and, thereafter, to receive the pertinent
evidence and then proceed to the determination of the issues raised thereby.
Otherwise, we would be placing upon the petitioners the burden of disproving
a defense set up by the respondents, who have not so 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 L-36142 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 L-36283, 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 non-political question. Justices Makalintal and
Castro did not vote squarely on this question, but, only inferentially, in their
discussion of the second question. Justice Barredo qualified his vote, stating
that "inasmuch as it is claimed there has been approval by the people, the
Court may inquire into the question of whether or not there has actually been
such an approval, and, in the affirmative, the Court should keep hands-off out
of respect to the people's will, but, in negative, the Court may determine from
both factual and legal angles whether or not Article XV of the 1935 Constitution
been complied with." Justices Makasiar, Antonio, Esguerra, or three (3)
members of the Court hold that the issue is political and "beyond the ambit of
judicial inquiry."
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 well-
considered one. The Constitution provided the manner in which proposed
amendments should be submitted to the people, but did not provide a method
for canvassing the votes. The Legislature having agreed to certain proposed
amendments, passed an act for submitting the same to the people. This statute
provided for the transmission to the Secretary of State of certificate showing
the result of the voting throughout the state, and made it the duty of the
Governor at the designated time summon four or more Senators, who, with
the Governor, should constitute a board of state canvassers to canvass and
estimate the votes for and against each amendment. This board was to
determine and declare which of the proposed amendments had been adopted
and to deliver a statement of the results to the Secretary of State, and "any
proposed amendment, which by said certificate and determination of the board
of canvassers shall appear to have received in its favor the majority of all the
votes cast in the state for and against said proposed amendment, shall from
the time of filing such certificate be and become an amendment to and a part
of the Constitution of the state; and it shall be the duty of the Governor of the
state forthwith, after such a determination, to issue a proclamation declaring
which of the said proposed amendments have been adopted by the people."
This board was required to file a statement of the result of the election, and
the Governor to issue his proclamation declaring that the amendment had
been adopted and become a part of the Constitution. At the instance of a
taxpayer the Supreme Court allowed a writ of certiorari to remove into the court
for review the statement of the results of the election made by the canvassing
board, in order that it might be judicially determined whether on the facts
shown in that statement the board had legally determined that the proposed
amendment had been adopted. The Supreme Court decided that the
concurrence of the board of state canvassers and the executive department of
the government in their respective official functions placed the subject-
matter beyond the cognizance of the judicial department of the state. The
Court of Appeals, after a full review of the authorities, reversed this decision,
and held that the questions were of a judicial nature, and properly determinable
by the court on their merits. Mr. Justice Dixon, after stating the facts, said: 'It
thus becomes manifest that there was present in the Supreme Court, and is
now pending in this court, every element tending to maintain jurisdiction over
the subject-matter, unless it be true, as insisted, that the judicial department of
the government has not the right to consider whether the legislative
department and its agencies have observed constitutional injunctions in
attempting to amend the Constitution, and to annul their acts in case that they
have not done so. That such a proposition is not true seems to be indicated by
the whole history of jurisprudence in this country.' The court, after considering
the case on the merits, held that the proper conclusion had been drawn
therefrom, and that the amendment in question was legally submitted and
adopted.
"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 Done in the City of Manila, this 7th day of January in the year of Our Lord,
observed: "The argument has often been made in similar cases to the courts, nineteen hundred and seventy-three.
and it is found in many dissenting opinions; but, with probably
a few exceptions, it is not found in anyprevailing opinion." (
S
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that G
the constitutional requirement of publication of a proposed constitutional D
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." F
E
ANNEX B R
D
MALACAANG MANILA BY THE PRESIDENT OF THE PHILIPPINES I
N
PRESIDENTIAL DECREE NO. 86-B
A
N
Defining Further the Role of Barangays (Citizens Assemblies) D
E
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated .
December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the M
Office of the President to submit to them for resolution important national A
issues; R
C
WHEREAS, one of the questions persistently mention refers to the ratification O
of the Constitution proposed by the 1971 Constitutional Convention; S

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.
By the President:
(SGD.) ALEJANDRO MELCHOR
Executive Secretary
Separate Opinions
MAKALINTAL, J., concurring:
CASTRO, J., concurring:
The preliminary question before this Court was whether or not the petitioners
had made out a sufficient prima facie case in their petitions to justify their being
given due course. Considering on the one hand the urgency of the matter and
on the other hand its transcendental importance, which suggested the need
for hearing the side of the respondents before that preliminary question was
resolved, We required them to submit their comments on the petitions. After
the comments were filed We considered them as motions to dismiss so that
they could be orally argued. As it turned out, the hearing lasted five days,
morning and afternoon, and could not have been more exhaustive if the
petitions had been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies as
certified and proclaimed by the President on January 17, 1973 (Proclamation
No. 1102) was not an act of ratification, let alone a valid one, of the proposed
Constitution, because it was not in accordance with the existing Constitution
(of 1935) and the Election Code of 1971. Other grounds are relied upon by the
petitioners in support of their basic proposition, but to our mind they are merely
subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments
(proposed either by Congress in joint session or by a Convention called by it
for the purpose) "shall be valid part of this Constitution when approved by a
majority of votes cast at an election at which the amendments submitted to the
people for their ratification." At the time Constitution was approved by the
Constitutional Convention on February 8, 1935, and ratified in a plebiscite held
on following May 14, the word "election" had already a definite meaning in our
law and jurisprudence. It was not a vague and amorphous concept, but a
procedure prescribed by statute ascertaining the people's choices among
candidates for public offices, or their will on important matters submitted to the
pursuant to law, for approval. It was in this sense that word was used by the
framers in Article XV (also in Articles VI and VII), and in accordance with such
procedure that plebiscites were held to ratify the very same Constitution in
1935 as well as the subsequent amendments thereto, thus: in 1939
(Ordinance appended to the Constitution); 1940 (establishment of a bicameral
legislature; eligibility of the President and the Vice President for re election;
creation of the Commission of Elections); 1947 (Parity Amendment); and 1967
(increase in membership of the House of Representatives and eligibility of
members of Congress to run for the Constitutional Convention without
forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that "all elections of public
officers except barrio officials andplebiscites shall be conducted in the manner
provided by this Code." This is a statutory requirement designed, as were the
other election laws previously in force, to carry out the constitutional mandate
relative to the exercise of the right suffrage, and with specific reference to the
term "plebiscites," the provision of Article XV regarding ratification of
constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is
spelled out in other sections thereof. Section 99 requires that qualified voters
be registered in a permanent list, the qualifications being those set forth in
Article V, Section 1, of the 1935 Constitution on the basis of age (21), literacy
and residence. These qualifications are reiterated in Section 101 of the
Election Code. Section 102 enumerates the classes of persons disqualified to
vote. Succeeding sections prescribe the election paraphernalia to be used, the
procedure for registering voters, the records, of registration and the custody
thereof, the description and printing of official ballots, the actual casting of
votes and their subsequent counting by the boards of inspectors, the rules for
appreciation of ballots, and then the canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft Constitution, several
additional circumstances should be considered:
(1) This draft was prepared and approved by a Convention which had been
convened pursuant to Resolution No. 2 passed by Congress on March 16,
1967, which provides:
Sec. 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.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite called for the
purpose and, except as herein provided, shall supersede the
Constitution of nineteen hundred and thirty-five and all amendments
thereto.
The same procedure is prescribed in Article XVI, Section 2, for the ratification
of any future amendment to or revision of the said Constitution.
(3) After the draft Constitution was approved by the Constitutional Convention
on November 30, 1972 the said body adopted Resolution No. 5843, proposing
"to President Ferdinand E. Marcos that a decree be issued calling
a plebiscite for the ratification of the proposed New Constitution on such
appropriate date as he shall determine and providing for the necessary funds
therefor." Pursuant to said Resolution the President issued Decree No. 73 on
the same day, calling a plebiscite to be held on January 15, 1973, at which the
proposed Constitution "shall be submitted to the people for ratification or
rejection." The Decree had eighteen (18) sections in all, prescribing in detail
the different steps to be taken to carry out the process of ratification, such as:
(a) publication of the proposed Constitution in English and Pilipino; (b) freedom
of information and discussion; (c) registration of voters: (d) appointment of
boards of election inspectors and designation of watchers in each precinct; (e)
printing of official ballots; (f) manner of voting to insure freedom and secrecy
thereof; (g) canvass of plebiscite returns; and (h) in general, compliance with
the provisions of the Election Code of 1971, with the Commission on Elections
exercising its constitutional and statutory powers of supervision of the entire
process.
There can hardly be any doubt that in everybody's view from the framers of
the 1935 Constitution through all the Congresses since then to the 1971
Constitutional Convention amendments to the Constitution should be
ratified in only one way, that is, in an election or plebiscite held in accordance
with law and participated in only by qualified and duly registered voters.
Indeed, so concerned was this Court with the importance and indispensability
of complying with the mandate of the (1935) Constitution in this respect that in
the recent case of Tolentino vs. Commission on Elections, No. L-34150,
October 16, 1971 (41 SCRA 702), a resolution of the (1971) Constitutional
Convention submitting a proposed amendment for ratification to a plebiscite to
be held in November 1971 was declared null and void. The amendment sought
to reduce the voting age from twenty-one to eighteen years and was approved
by the Convention for submission to a plebiscite ahead of and separately from
other amendments still being or to be considered by it, so as to enable the
youth to be thus enfranchised to participate in the plebiscite for the ratification
of such other amendments later. This Court held that such separate
submission was violative of Article XV, Section 1, of the Constitution, which
contemplated that "all the amendments to be proposed by the same
Convention must be submitted to the people in a single "election" or
plebiscite." * Thus a grammatical construction based on a singular, instead of
plural, rendition of the word "election" was considered a sufficient ground to
rule out the plebiscite which had been called to ratify a proposed amendment
in accordance with the procedure and under all the safeguards provided in the
Election Law.
In the cases now before Us what is at issue is not merely the ratification of just
one amendment, as in Tolentino vs. COMELEC, but the ratification of an entire
charter setting up a new form of government; and the issue has arisen not
because of a disputed construction of one word or one provision in the 1935
Constitution but because no election or plebiscite in accordance with that
Constitution and with the Election Code of 1971 was held for the purpose of
such ratification.
The Citizens Assemblies which purportedly ratified the draft Constitution were
created by Presidential Decree No. 86 dated December 31, 1972, "to broaden
the base of citizen participation in the democratic process and to afford ample
opportunities for the citizenry to express their views on important national
issues." The Assemblies "shall consist 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 lists of Citizen
Assembly members kept by the barrio, district or ward secretary." By
Presidential Decree No. 86-A, dated January 5, 1973, the Assemblies were
convened for a referendum between January 10 and 15, to "consider vital
national issues now confronting the country, like the holding of the plebiscite
on the new Constitution, the continuation of martial rule, the convening of
Congress on January 22, 1973, and the holding of elections in November
1973."
On January 5, 1973 the newspapers came out with a list of four questions to
be submitted to the Citizens Assemblies, the fourth one being as follows: "How
soon would you like plebiscite on the new Constitution to be held?" It should
be noted in this connection that the President had previously announced that
he had ordered the postponement of plebiscite which he had called for January
15, 1973 (Presidential Decree No. 73) for the ratification of the Constitution,
and that he was considering two new dates for the purpose February 19 or
March 5; that he had ordered that the registration of voters (pursuant to Decree
No. 73) be extended to accommodate new voters; and that copies of the new
Constitution would be distributed in eight dialects the people. (Bulletin Today,
December 24, 1972.)
On January 10, 1973 it was reported that one more question would be added
to the original four which were to be submitted to the Citizens Assemblies. The
question concerning plebiscite was reworded as follows: "Do you like the
plebiscite to be held later?" The implication, it may likewise be noted, was that
the Assemblies should express their views as to the plebiscite should be held,
not as to whether or not it should be held at all.
The next day, January 11, it was reported that six additional questions would
be submitted, namely:
(1) Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interest?
(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
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].
Appended to the six additional questions above quoted were the suggested
answers, thus:
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
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
The vote of the Citizens Assemblies should already be considered the
plebiscite on the New Constitution.
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 program 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.
So it was that on January 11, 1973, the second day of the purported
referendum, the suggestion was broached, for the first time, that the plebiscite
should be done away with and a favorable vote by the Assemblies deemed
equivalent ratification. This was done, not in the questionnaire itself, but in the
suggested answer to question No. 3. Strangely, however, it was not similarly
suggested that an unfavorable vote be considered as rejection.
There should be no serious dispute as to the fact that the manner in which the
voting was conducted in the Citizen Assemblies, assuming that such voting
was held, was not within the intendment of Article XV, Section 1, of the 1935
Constitution nor in accordance with the Election Code of 1971. The
referendum can by no means be considered as the plebiscite contemplated in
Section 2 of said Code and in Article XVII, Section 16, of the draft Constitution
itself, or as the election intended by Congress when it passed Resolution No.
2 on March 16, 1967 calling a Convention for the revision of the 1935
Constitution. The Citizens Assemblies were not limited to qualified, let alone
registered voters, but included all citizens from the age of fifteen, and
regardless of whether or not they were illiterates, feeble-minded, or ex
convicts * these being the classes of persons expressly disqualified from
voting by Section 102 of the Election Code. In short, the constitutional and
statutory qualifications were not considered in the determination of who should
participate. No official ballots were used in the voting; it was done mostly by
acclamation or open show of hands. Secrecy, which is one of the essential
features of the election process, was not therefore observed. No set of rules
for counting the votes or of tabulating them and reporting the figures was
prescribed or followed. The Commission on Elections, which is the
constitutional body charged with the enforcement and administration of all laws
relative to the conduct of elections, took no part at all, either by way of
supervision or in the assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the
overwhelming majority of all the members of the Citizens Assemblies had
voted for the adoption of the proposed Constitution there was a substantial
compliance with Article XV, Section 1, of the 1935 Constitution and with the
Election Code of 1971. The suggestion misses the point entirely. It is of the
essence of a valid exercise of the right of suffrage that not only must a majority
or plurality of the voters carry the day but that the same must be duly
ascertained in accordance with the procedure prescribed by law. In other
words the very existence of such majority or plurality depends upon the
manner of its ascertainment, and to conclude that it exists even if it has not
been ascertained according to law is simply to beg the issue, or to assume the
very fact to be established. Otherwise no election or plebiscite could be
questioned for non-compliance with the provisions of the Election Law as long
as it is certified that a majority of the citizens had voted favorably or adversely
on whatever it was that was submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the Citizens
Assemblies, as certified by the President in Proclamation No. 1102, was not in
accordance with the constitutional and statutory procedure laid down for the
purpose does not quite resolve the questions raised in these cases. Such a
finding, in our opinion, is on a matter which is essentially justiciable, that is,
within the power of this Court to inquire into. It imports nothing more than a
simple reading and application of the pertinent provisions of the 1935
Constitution, of the Election Code and of other related laws and official acts.
No question of wisdom or of policy is involved. But from this finding it does not
necessarily follow that this Court may justifiably declare that the Constitution
has not become effective, and for that reason give due course to these
petitions or grant the writs herein prayed for. The 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, and therefore
beyond the competence of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The
petitioners lay stress on the invalidity of the ratification process adopted by the
Citizens Assemblies and on that premise would have this Court grant the
reliefs they seek. The respondents represented by the Solicitor General,
whose theory may be taken as the official position of the Government,
challenge the jurisdiction of this Court on the ground that the questions raised
in the petitions are political and therefore non-justiciable, and that in any case
popular acquiescence in the new Constitution and the prospect of unsettling
acts done in reliance thereon should caution against interposition of the power
of judicial review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in their
respective capacities as President and President Pro Tempore of the Senate
of the Philippines, and through their counsel, Senator Arturo Tolentino,
likewise invoke the political question doctrine, but on a ground not concurred
in by the Solicitor General, namely, that approval of the 1973 Constitution by
the people was made under a revolutionary government, in the course of a
successful political revolution, which was converted by act of the people to the
present de jure government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for
adjudication proceeded on the assumption, conceded by all, that the
Constitution was in full force and effect, with the power and authority of the
entire Government behind it; and the task of this Court was simply to determine
whether or not the particular act or statute that was being challenged
contravened some rule or mandate of that Constitution. The process employed
was one of interpretation and synthesis. In the cases at bar there is no such
assumption: the Constitution (1935) has been derogated and its continued
existence as well as the validity of the act of derogation is issue. The legal
problem posed by the situation is aggravated by the fact that the political arms
of the Government the Executive Departments and the two Houses of
Congress have accepted the new Constitution as effective: the former by
organizing themselves and discharging their functions under it, and the latter
by not convening on January 22, 1973 or at any time thereafter, as ordained
by the 1935 Constitution, and in the case of a majority of the members by
expressing their option to serve in the Interim National Assembly in
accordance with Article XVIII, Section 2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents Puyat
and Roy, may be taken up and restated at same length if only because it would
constitute, if sustained, the most convenient ground for the invocation of the
political-question doctrine. In support of his theory, Senator Tolentino contends
that after President Marcos declared martial law on September 21, 1972
(Proclamation No. 1081) he established a revolutionary government when he
issued General Order No. 1 the next day, wherein he proclaimed "that I shall
govern the nation and direct the operation of the entire government, including
all its agencies and instrumentalities, in my capacity, and shall exercise all the
powers and prerogatives appurtenant and incident to my position as such
Commander-in-Chief of all the Armed Forces of the Philippines." By this order,
it is pointed out, the Commander-in-Chief of the Armed Forces assumed all
the powers of government executive, legislative, and judicial; and thereafter
proceeded to exercise such powers by a series of Orders and Decrees which
amounted to legislative enactments not justified under martial law and, in some
instances, trenched upon the domain of the judiciary, by removing from its
jurisdiction certain classes of cases, such as "those involving the validity,
legality, or constitutionality of Proclamation No. 1081, or of any decree, order
or act issued, promulgated or performed by me or by my duly designated
representative pursuant thereto." (General Order No. 3 as amended by
General Order No. 3-A, dated September 24, 1972.) The ratification by the
Citizens Assemblies, it is averred, was the culminating act of the revolution,
which thereupon converted the government into a de jure one under the 1973
Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the 1973
Constitution and that such ratification as well as the establishment of the
government thereunder formed part of a revolution, albeit peaceful, then the
issue of whether or not that Constitution has become effective and, as
necessary corollary, whether or not the government legitimately functions
under it instead of under the 1935 Constitution, is political and therefore non-
judicial in nature. Under such a postulate what the people did in the Citizen
Assemblies should be taken as an exercise of the ultimate sovereign power. If
they had risen up in arms and by force deposed the then existing government
and set up a new government in its place, there could not be the least doubt
that their act would be political and not subject to judicial review but only to the
judgment of the same body politic act, in the context just set forth, is based on
realities. If a new government gains authority and dominance through force, it
can be effectively challenged only by a stronger force; judicial dictum can
prevail against it. We do not see that situation would be any different, as far as
the doctrine of judicial review is concerned, if no force had been resorted to
and the people, in defiance of the existing Constitution but peacefully because
of the absence of any appreciable opposition, ordained a new Constitution and
succeeded in having the government operate under it. Against such a reality
there can be no adequate judicial relief; and so courts forbear to take
cognizance of the question but leave it to be decided through political means.
The logic of the political-question doctrine is illustrated in statement of the U.S.
Supreme Court in a case * relied upon, curiously enough, by the Solicitor
General, who disagrees with the revolutionary government theory of Senator
Tolentino. The case involved the issue of which of two opposing governments
struggling for supremacy in the State of Rhode Island was the lawful one. The
issue had previously come up in several other cases before the courts of the
State, which uniformly held that the inquiry belonged to the political power and
not to the judicial. Commenting on the ruling thus arrived at, the U.S. Supreme
Court said: "And if a State court should enter upon the inquiry proposed in this
case, and should come to the conclusion that the government under which it
acted had been put aside and displaced by an opposing government, it would
cease to be a court, and incapable of pronouncing a judicial decision upon the
question it undertook to try. If it decides at all as a court, it necessarily affirms
the existence and authority of the government under which it is exercising
judicial power." In other words, since the court would have no choice but to
decide in one way alone in order to be able to decide at all, the question could
not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would be
applicable in the cases at bar only on the premise that the ratification of the
Constitution was a revolutionary act and that the government now functioning
it is the product of such revolution. However, we are not prepared to agree that
the premise is justified.
In the first, place, with specific reference to the questioned ratification, several
significant circumstances may be noted. (1) The Citizens Assemblies were
created, according to Presidential Decree No. 86, "to broaden the base of
citizen participation in the democratic process and to afford ample
opportunities for the citizenry to express their views on important national
issues." (2) The President announced, according to the Daily Express of
January 2, 1973, that "the referendum will be in the nature of a loose
consultation with the people." (3) The question, as submitted to them on the
particular point at issue here, was "Do you a approve of the Constitution?" (4)
President Marcos, in proclaiming that the Constitution had been ratified, stated
as follows: "(S)ince 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." (5) There was not enough time for the Citizens Assemblies
to really familiarize themselves with the Constitution, much less with the many
other subjects that were submitted to them. In fact the plebiscite planned for
January 15, 1973 under Presidential Decree No. 73 had been postponed to
an indefinite date, the reasons for the postponement being, as attributed to the
President in the newspapers, that "there was little time to campaign for or
against ratification" (Daily Express, Dec. 22, 1972); that he would base his
decision (as to the date, of the plebiscite) on the compliance by the
Commission (on Elections) on the publication requirement of the new Charter
and on the position taken by national leaders" (Daily Express, Dec. 23, 1972);
and that "the postponement would give us more time to debate on the merits
of the Charter." (Bulletin Today, Dec. 24, 1972.)
The circumstances above enumerated lead us to the conclusion that the
Citizens Assemblies could not have understood the referendum to be for the
ratification of the Constitution, but only for the expression of their views on a
consultative basis. Indeed, if the expression of those views had been intended
as an act of ratification (or of rejection as a logical corollary) there would
have been no need for the Katipunan ng mga Barangay to recommend that
the Constitution should already be deemed ratified, for recommendation
imports recognition of some higher authority in whom the final decision rests.
But then the President, pursuant to such recommendation, did proclaim that
the Constitution had been ratified and had come into effect. The more relevant
consideration, therefore, as far as we can see, should be as to what the
President had in mind in convening the Citizens Assemblies, submitting the
Constitution to them and proclaiming that the favorable expression of their
views was an act of ratification. In this respect subjective factors, which defy
judicial analysis and adjudication, are necessarily involved.
In positing the problem within an identifiable frame of reference we find no
need to consider whether or not the regime established by President Marcos
since he declared martial law and under which the new Constitution was
submitted to the Citizens Assemblies was a revolutionary one. The pivotal
question is rather whether or not the effectivity of the said Constitution by virtue
of Presidential Proclamation No. 1102, upon the recommendation of
the Katipunan ng mga Barangay, was intended to be definite and irrevocable,
regardless of non-compliance with the pertinent constitutional and statutory
provisions prescribing the procedure for ratification. We must confess that after
considering all the available evidence and all the relevant circumstances we
have found no reasonably reliable answer to the question. On one hand we
read, for instance, the following public statements of the President:
Speaking about the proclamation of martial law, he said:
 I reiterate what I have said in the past: there is no turning back for our
people.
We have committed ourselves to this revolution. We have pledged to
it our future, our fortunes, our lives, our destiny. We have burned our
bridges behind us. Let no man misunderstand the strength of our
resolution. (A Report to the Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17, 1973,
the President said the following, among other things:
... We can, perhaps delimit the power of the people to speak on legal
matters, on justiciable matters, on matters that may come before the
experts and interpreters of the law. But we cannot disqualify the
people from speaking on what we and the people consider purely
political matters especially those that affect the fundamental law of the
land.
... The political questions that were presented to the people are exactly
those that refer to the form of government which the people want ...
The implications of disregarding the people's will are too awesome to
be even considered. For if any power in government should even dare
to disregard the people's will there would be valid ground for revolt.
... Let it be known to everybody that the people have spoken and they
will no longer tolerate any attempt to undermine the stability of their
Republic; they will rise up in arms not in revolt against the Republic but
in protection of the Republic which they have installed. It is quite clear
when the people say, we ratify the Constitution, that they mean they
will not discard, the Constitution.
On January 19, 1973 the Daily Express published statement of the President
made the day before, from which the following portion is quoted:
... the times are too grave and the stakes too high for us permit the
customary concessions to traditional democratic process to hold back
our people's clear and unequivocal resolve and mandate to meet and
overcome the extraordinary challenges presented by these
extraordinary times.
On the same occasion of the signing of Proclamation No. 1102 the President
made pointed reference to "the demand of some of our citizens ... that when
all other measures should fail, that the President be directed to organize and
establish a Revolutionary Government," but in the next breath added: "... if we
do ratify the Constitution, how can we speak of Revolutionary Government?
They cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens'
Assemblies which submitted this recommendation merely sought articulate
their impatience with the status quo that has brought about anarchy, confusion
and misery to the masses ..." The only alternatives which the President clearly
implied by the foregoing statements were the ratification of the new
Constitution and the establishment of a revolutionary government, the latter
being unnecessary, in his opinion, because precisely the Constitution had
been ratified. The third obvious alternative was entirely ruled out, namely, a
return to the 1935 Constitution, for it was the status quo under that Constitution
that had caused "anarchy, confusion and misery." The message seems clear:
rather than return to such status quo, he would heed the recommendation of
the Citizens' Assemblies to establish a revolutionary government, because that
would be the only other way to carry out the reforms he had envisioned and
initiated reforms which, in all fairness and honesty, must be given credit for
the improved quality of life in its many aspects, except only in the field of civil
liberties.
If there is any significance, both explicit and implicit, and certainly
unmistakable, in the foregoing pronouncements, it is that the step taken in
connection with the ratification of the Constitution was meant to be irreversible,
and that nothing anyone could say would make the least difference. And if this
is a correct and accurate assessment of the situation, then we would say that
since it has been brought about by political action and is now maintained by
the government that is in undisputed authority and dominance, the matter lies
beyond the power of judicial review.
On the other hand, by avowals no less significant if not so emphatic in terms,
President Marcos has professed fealty to the Constitution. In "Today's
Revolution: Democracy" he says:
I believe, therefore, in the necessity of Revolution as an instrument of
individual and social change ... but that in a democratic society,
revolution is of necessity, constitutional, peaceful, and legal.
In his TV address of September 23, 1972, President Marcos told the nation:
I have proclaimed martial law in accordance with the powers vested in
the President by the Constitution of the Philippines.
xxx xxx xxx
I repeat, this is not a military takeover of civil government functions.
The Government of the Republic of the Philippines which was
established by our people in 1946 continues.
 xxx xxx xxx
I assure you that I am utilizing this power vested in me by the
Constitution to save the Republic and reform our society...
I have had to use this constitutional power in order that we may not
completely lose the civil rights and freedom which we cherish...
... We are against the wall. We must now defend the Republic with the
stronger powers of the Constitution.
(Vital Documents, pp. 1-12; emphasis supplied).
In the report of an interview granted by the President to the Newsweek
Magazine (published in the issue of January 29, 1973), the following appears:
xxx xxx xxx
Q. Now that you have gotten off the constitutional track, won't you be
in serious trouble if you run into critical problems with your programs?
R. I have never gotten off the constitutional track. Everything I am
doing is in accordance with the 1935 Constitution. The only thing is
that instead of 18-year-olds voting, we have allowed 15-year-olds the
right to vote. But the 15-year-olds of today are high-school students, if
not graduates, and they are better informed than my contemporaries
at that age. On the matter of whether it is constitutional to proclaim
martial law, it is constitutional because the Constitution provides for it
in the event of invasion, insurrection, rebellion or immediate danger
thereof. We may quarrel about whether what we have gone through is
sufficient cause to proclaim martial law but at the very least there is a
danger of rebellion because so many of our soldiers have been killed.
You must remember this (martial law provision) was lifted from the
American legislation that was the fundamental law of our country.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of action to
pursue belongs to the President. We have earlier made reference to subjective
factors on which this Court, to our mind, is in no position to pass judgment.
Among them is the President's own assessment of the will of the people as
expressed through the Citizens Assemblies and of the importance of the 1973
Constitution to the successful implementation of the social and economic
reforms he has started or envisioned. If he should decide that there is no
turning back, that what the people recommended through the Citizens
Assemblies, as they were reported to him, demand that the action he took
pursuant thereto be final and irrevocable, then judicial review is out of the
question.
In articulating our view that the procedure of ratification that was followed was
not in accordance with the 1935 Constitution and related statutes, we have
discharged our sworn duty as we conceive it to be. The President should now
perhaps decide, if he has not already decided, whether adherence to such
procedure is weighty enough a consideration, if only to dispel any cloud of
doubt that may now and in the future shroud the nation's Charter.
In the deliberations of this Court one of the issues formulated for resolution is
whether or not the new Constitution, since its submission to the Citizens
Assemblies, has found acceptance among the people, such issue being
related to the political question theory propounded by the respondents. We
have not tarried on the point at all since we find no reliable basis on which to
form a judgment. Under a regime of martial law, with the free expression of
opinions through the usual media vehicles restricted, we have no means of
knowing, to the point of judicial certainty, whether the people have accepted
the Constitution. In any event, we do not find the issue decisive insofar as our
vote in these cases is concerned. To interpret the Constitution that is
judicial. That the Constitution should be deemed in effect because of popular
acquiescence that is political, and therefore beyond the domain of judicial
review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no more than mere
reiterations of the Supplemental Petitions filed by Counsel Lorenzo M. Taada
on January 15, 1973 in the so called Plebiscite Cases decided by this Court
on January 22, 1978. Of course, there are amplifications of some of the
grounds previously alleged and in the course of the unprecedented five-day
hearing that was held from February 12 to 16 last, more extensive and
illuminating arguments were heard by Us, but, in my estimation, and with due
recognition of the sincerety, brilliance and eloquence of counsels, nothing
more cogent and compelling than what had already been previously presented
by Counsel Taada is before Us now. Accordingly, I cannot see any reason
why I should change the position I took in regard to the earlier cases. I
reiterate, therefore, the vote I cast when these petitions were initially
considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues before the
Court and the significance to our people and in history of the individual stands
of the members of the Court in relation to said issues and to the final outcome
of these cases, and considering that I reserved before the filing of a more
extended opinion, I will take this opportunity to explain further why I hold that
the 1973 Constitution is already in force, if only to clarify that apart from the
people's right of revolution to which I made pointed reference in my previous
opinion, I can see now, after further reflection, that the vote of the people in
the referendum in the Citizens Assemblies held on January 10 to 15, 1973,
upon the result of which Proclamation 1102 is based, may be viewed more
importantly as a political act than as a purely legal one with the result that such
vote to consider the 1973 Constitution as ratified without the necessity of
holding a plebiscite in the form followed in the previous ratification plebiscites
in 1935 of the Constitution itself, 1937 of women's suffrage, 1939 of the
amendments to the Ordinance Appended to the Constitution, 1940 of the re-
election of the President, the bicameral legislature and the Commission on
Elections, 1947 of the parity amendment and 1967, rejecting the proposed
increase in the members of the House of Representatives and eligibility of
members of Congress to the Constitutional Convention, may be deemed as a
valid ratification substantially in compliance with the basic intent of Article XV
of the 1935 Constitution. If indeed this explanation may be considered as a
modification of my rationalization then, I wish to emphasize that my position
as to the fundamental issue regarding the enforceability of the new
Constitution is even firmer now than ever before. As I shall elucidate anon,
paramount considerations of national import have led me to the conviction that
the best interests of all concerned would be best served by the Supreme Court
holding that the 1973 Constitution is now in force, not necessarily as a
consequence of the revolutionary concept previously suggested by me, but
upon the ground that as a political, more than as a legal, act of the people, the
result of the referendum may be construed as a compliance with the
substantiality of Article XV of the 1935 Constitution.
I effects of martial law and lifted the suspension of privilege of the writ of habeas
The facts that gave rise to these proceedings are historical and well known.
Generally, they may be taken judicial notice of. They revolve around the
purported ratification of the Constitution of 1973 declared in Proclamation 1102
issued by the President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent assembly
approved on March 16, 1967, delegates to a constitutional convention to
propose amendments to the Constitution of 1935 were elected in accordance
with the implementing law, Republic Act 6132, on November 10, 1970. Known
as the Constitutional Convention of 1971, the assembly began its sessions on
June 1, 1971. After encountering a lot of difficulties, due to bitter rivalries over
important positions and committees and an incomprehensible fear of
overconcentrating powers in their officers, the delegates went about their work
in comparatively slow pace, and by the third quarter of 1972 had finished
deliberations and second-reading voting only on an insignificant number of
proposals until September 21, 1972, when the President, not altogether
unexpectedly, yet abruptly, issued Proclamation 1081 declaring martial law
throughout the country. An attempt was made to have the Convention
recessed until after the lifting of martial law, and not long after the motion of
Delegate Kalaw to such effect was turned down, the activities within the
assembly shifted to high gear. As if unmindful of the arrest and continued
detention of several of its members, the convention gathered swift momentum
in its work, and on November 30, 1972, it approved by overwhelming vote the
draft of a complete constitution, instead of mere specific amendments of
particular portions of the Constitution of 1935. Needless to say, before martial
law was declared, there was full and unlimited coverage of the workings in the
convention by the mass media. At the same time, public debates and
discussions on various aspects of proposed amendments were not
uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No. 5843
proposing "to President Ferdinand Marcos that a decree be issued calling a
plebiscite for ratification of the proposed new Constitution on appropriate date
as he shall determine and providing for necessary funds therefor." Acting
under this authority, December 1, 1972, the President issued Presidential
Decree No. 73 submitting the draft constitution for ratification by the people at
a plebiscite set for January 15, 1973. This order contained provisions more or
less similar to the plebiscite laws passed by Congress relative to the past
plebiscites held in connection with previous proposed amendments.
In connection with the plebiscite thus contemplated, General Order No. 17 was
issued ordering and enjoining the authorities to allow and encourage public
and free discussions on proposed constitution. Not only this, subsequently,
under date of December 17, 1972, the President ordered the suspension the
corpus insofar as activities connected with the ratification of the draft
constitution were concerned. These two orders were not, however, to last very
long. On January 7, 1973, the President, invoking information related to him
that the area of public debate and discussion had opened by his previous
orders was being taken advantage of by subversive elements to defeat the
purposes for which they were issued and to foment public confusion, withdrew
said orders and enjoined full and stricter implementation of martial law.
In the meantime, the President had issued on December 3, 1972 Presidential
Decree No. 86 creating Citizens Assemblies "so as to afford ample
opportunities for the citizenry to express their views on important national
issues" and one of the questions presented to said assemblies was: "Do you
like the plebiscite on the proposed Constitution to be held later" So, the same
order of January 7, 1973, General Order No. 20, the President ordered, "that
the plebiscite scheduled to be held January 15, 1973, be postponed until
further notice".
In the meanwhile also, on January 5, 1973, the President issued Presidential
Decree, No. 86-A providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS
(CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports from the field
as gathered from barangays (citizens assemblies) that have so far
been established, the people would like to decide for themselves
questions or issues, both local and national, affecting their day-to-day
lives and their future;
WHEREAS, the barangays (citizens assemblies) would like
themselves to be the vehicle for expressing the views of the people on
important national issues;
WHEREAS, such barangays (citizens assemblies) desire that they be
given legal status and due recognition as constituting the genuine,
legitimate and valid expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to conduct
immediately a referendum on certain specified questions such as the
ratification of the new Constitution, continuance of martial law, the
convening of Congress on January 22, 1973, and the elections in
November 1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution
as Commander-in-Chief of all Armed Forces of the Philippines, do
hereby declare as part of the law of the land the following:
1. The present barangays (citizens assemblies) are created under
Presidential Decree No. 86 dated December 31, 1972, shall constitute
the base for citizen participation in governmental affairs and their
collective views shall be considered in the formulation of national
policies or programs and, wherever practicable, shall be translated
into concrete and specific decision;
2. Such barangays (citizens assemblies) shall consider vital national
issues now confronting the country, like the holding of the plebiscite
on the new Constitution, the continuation of martial rule, the convening
of Congress on January 22, 1973, and the holding of elections in
November 1973, and others in the future, which shall serve as guide
or basis for action or decision by the national government;
3. The barangays (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 results
thereof to the Department of Local Governments Community
Development immediately thereafter, pursuant to express will of the
people as reflected in the reports gathered from the many thousands
of barangays (citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year of Our
Lord, nineteen hundred and seventy three.
And on January 7, 1973, this was followed by Presidential Decree No. 86-B
reading thus:
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 them for resolution important national
issues;
WHEREAS, one of the questions persistently mentioned
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
be 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 and 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 Governments 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.
And so it was that by January 10, 1973, when the Citizens Assemblies thus
created started the referendum which was held from said date to January 15,
1973, the following questions were submitted to them:
(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?.
but on January 11, 1973, six questions were added as follows:
(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 it to
be called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were
furnished "comments" on the said questions more or less suggestive of the
answer desired. It may assumed that the said "comments" came from official
sources, albeit specifically unidentified. As petitioners point out, the most
relevant of these "comments" were the following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoke. 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.
The Solicitor General claims, and there seems to be showing otherwise, that
the results of the referendum were determined in the following manner:
Thereafter, the results of the voting were collated and sent to the
Department of Local Governments. The transmission of the results
was made by telegram, telephone, the provincial government SSB
System in each province connecting all towns; the SSB
communication of the PACD connecting most provinces; the
Department of Public Information Network System; the Weather
Bureau Communication System connecting all provincial capitals and
the National Civil Defense Network connecting all provincial capitals.
 The certificates of results were then flown to Manila to confirm the
previous figures received by the aforementioned means of
transmission. The certificates of results tallied with the previous
figures taken with the exception of few cases of clerical errors.
The Department adopted a system of regionalizing the receiving
section of the Citizens Assemblies operation at the Department
wherein the identity of the barrio and the province was immediately
given to a staff in charge of each region. Every afternoon at 2:00
o'clock, the 11 regions submitted the figures they received from the
field to the central committee to tabulate the returns. The last figures
were tabulated at 12 midnight of January 16, 1973 and early morning
of January 17, 1973 and were then communicated to the President by
the Department of Local Governments.
The development culminated in the issuance by the President of Proclamation
1102 on January 17, 1973. Said proclamation reads:
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. 6, 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 establish precisely to
broaden the base of citizen participation in the democratic process
and to afford ample opportunity for the citizen to express their views
on important national issues;
WHEREAS, responding to the clamor of the people an pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following
questions were posed before 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 forty-three thousand eight
hundred sixty nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to
be called to ratify the new Constitution fourteen million two hundred
ninety-eight thousand eight hundred fourteen (14,298,814) answered
that there was no need for 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) percent of the members of the Barangays (Citizen
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 seventy-one (1971) Constitutional Convention
has been ratified by an overwhelmingly 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.
The first attempt to question the steps just enumerated taken by the President
was in the so-called Plebiscite Cases, ten in number, which were filed by
different petitioners during the first half of December 1972. 1 Their common
target then was Presidential Decree No. 73, but before the said cases could
be decided, the series of moves tending in effect to make them moot and
academic insofar as they referred exclusively to the said Presidential Decree
began to take shape upon the issuance of Presidential Decree No. 86-A,
quoted above. And when Presidential Decree No. 86-B, also above quoted,
was issued and the six additional questions which were first publicized on
January 11, 1973 were known, together with the "comments", petitioners
sensed that a new and unorthodox procedure was being adopted to secure
approval by the people of the new Constitution, hence Counsel Taada, not
being satisfied with the fate of his urgent motion for early decision of the above
ten cases dated January 12, 1973, filed on January 15, 1973, his supplemental
motion seeking the prohibition against and injunction of the proceedings going
on. Principal objective was to prevent that the President be furnished the report
of the results of the referendum and thereby disable him from carrying out what
petitioners were apprehensively foreseeing would be done the issuance of
some kind of proclamation, order or decree, declaring that the new Constitution
had been ratified. Reacting swiftly, the Court resolved on the same day,
January 15, which was Monday, to consider the supplemental motion as a
supplemental petition and to require the respondents to answer the same the
next Wednesday, January 17th, before the hour of the hearing of the petition
which set for 9:30 o'clock in the morning of that day. The details what
happened that morning form part of the recital of facts the decision rendered
by this Court in the ten cases on January 22, 1973 and need not be repeated
here. Suffice it to state no that before the hearing could be closed and while
Counsel Taada was still insisting on his prayer for preliminary injunction or
restraining order, the Secretary of Justice arrived and personally handed to
the Chief Justice a copy Proclamation 1102 which had been issued at about
11:00 o'clock that same morning. In other words, the valiant and persistent
efforts of petitioners and their counsels were overtaken by adverse
developments, and in the mind of the majority of the members of the Court,
the cases had become academic. For my part, I took the view that even on the
basis of the supplemental petition and the answer thereto filed by respondents,
the Court could already decide on the fundamental issue of the validity
Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed,
inasmuch as Counsel Taada's pleading and argument had anticipated its
issuance, but the majority felt it was not ready to resolve the matter, for lack,
according them, of full ventilation, and so, the decision reserved petitioners the
filing of the "appropriate" cases, evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although believed
to be inconsequential by my learned brethren, I strongly feel needs special
attention. I refer to the point raised by Counsel Arturo M. Tolentino for
respondent Gil J. Puyat and Jose Roy, who have been sued as President and
President Pro Tempore of the Senate, to the effect that change in the
composition of the Supreme Court provided for the 1973 Constitution, from the
11-man tribunal under the 1935 Constitution to a 15-man Court, makes of
these cases which were filed after January 17, 1973 the date when
Proclamation 1102 declared the new Constitution as ratified, political nature
and beyond our jurisdiction. The main consideration submitted in this
connection is that inasmuch as the number votes needed for a decision of this
Court has been increased from six to eight in ordinary cases and from eight to
ten for the declaration of unconstitutionality of a treaty, executive
agreement 2 or law, the Court would have to resolve first as a prejudicial
question whether the Court is acting in these cases as the 15-man or the 11-
man Court, in which event, it would be faced with the dilemma that if it acts
either as the former or as the latter, it would be prejudging the very matter in
issue one way or the other, and, in effect, it would be choosing between two
constitutions, which is a political determination not within the Court's
competence.
While I agree that the problem is at first blush rather involved, I do not share
the view that the premises laid down by counsel necessarily preclude this
Court from taking a definite stand on whether the Court is acting in these cases
as the 15-Man or the 11-man Court. I feel very strongly that the issue should
not be ignored or dodged, if only to make the world know that the Supreme
Court of the Philippines is never incognizant of the capacity in which it is acting,
much less lacking in courage or wisdom to resolve an issue that relates directly
to its own composition. What a disgrace it would be to admit that this Supreme
Court does not know, to use a common apt expression, whether it is fish or
fowl. Withal, scholars and researchers who might go over our records in the
future will inevitably examine minutely how each of us voted and upon what
considerations we have individually acted, and, indeed, doubts may arise as
to whether or not, despite the general result we might announce, there had
been the requisite number of votes for a valid collegiate action.
For instance, it may be argued that the present cases do not involve an issue
of unconstitutionality, hence, if we are acting as the 11-man Court, only six
votes would suffice to declare Proclamation 1102 ineffective, and if upon
analysis of our respective opinions it should be inferable therefrom that six of
us have considered the matter before the Court as justiciable and at the same
time have found the procedure of ratification adopted in Presidential Decrees
86-A and 86-B and related orders of the President as not being in conformity
with Article XV of the old Constitution, a cloud would exist as to efficacy of the
dispositive portion of Our decision dismiss these cases, even if we have it
understood that by the vote of justices in favor of such dismissal, We intended
to mean the implementation or enforcement of the new Constitution now being
done could continue.
Be that as it may, I am against leaving such an important point open to
speculation. By nature I am averse to ambiguity and equivocation and as a
member of the Supreme Court, last thing I should knowingly countenance is
uncertainty as to the juridical significance of any decision of the Court which is
precisely being looked upon as the haven in which doubts are supposed to be
authoritatively dispelled. Besides, from very nature of things, one thing is
indubitably beyond dispute we cannot act in both capacities of a 15-man
and an 11-man Court at the same time, in like manner that it is inconceivable
that the 1935 and 1973 Constitution can be considered by Us both in force.
Our inescapable duty is to make a choice between them, according to what
law and other considerations inherent to our function dictate. I cannot bear the
thought that someone may someday say that the Supreme Court of the
Philippines once decided a case without knowing the basis of its author to act
or that it was ever wanting in judicial courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my
sense of duty and propriety to straighten out this grave of issue touching on
the capacity in which the Court acting in these cases, I hold that we have no
alternative but adopt in the present situation the orthodox rule that when
validity of an act or law is challenged as being repugnant constitutional
mandate, the same is allowed to have effect until the Supreme Court rules that
it is unconstitutional. Stated differently, We have to proceed on the assumption
that the new Constitution is in force and that We are acting in these cases as
the 15-man Supreme Court provided for there Contrary to counsel's
contention, there is here no prejudgment for or against any of the two
constitutions. The truth of matter is simply that in the normal and logical
conduct governmental activities, it is neither practical nor wise to defer the
course of any action until after the courts have ascertained their legality, not
only because if that were to be the rule, the functioning of government would
correspondingly be undesirably hesitative and cumbersome, but more
importantly, because the courts must at the first instance accord due respect
to the acts of the other departments, as otherwise, the smooth running of the
government would have to depend entirely on the unanimity of opinions among
all its departments, which is hardly possible, unless it is assumed that only the
judges have the exclusive prerogative of making and enforcing the law, aside
from being its sole interpreter, which is contrary to all norms of juridical and
political thinking. To my knowledge, there is yet no country in the world that
has recognized judicial supremacy as its basic governmental principle, no
matter how desirable we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on
the assumption that this Court is still functioning under the 1935 Constitution.
It is undeniable that the whole government, including the provincial, municipal
and barrio units and not excluding the lower courts up to the Court of Appeals,
is operating under the 1973 Constitution. Almost daily, presidential orders and
decrees of the most legislative character affecting practically every aspect of
governmental and private activity as well as the relations between the
government and the citizenry are pouring out from Malacaang under the
authority of said Constitution. On the other hand, taxes are being exacted and
penalties in connection therewith are being imposed under said orders and
decrees. Obligations have been contracted and business and industrial plans
have been and are being projected pursuant to them. Displacements of public
officials and employees in big numbers are going on in obedience to them. For
the ten justices of the Supreme Court to constitute an island of resistance in
the midst of these developments, which even unreasoning obstinacy cannot
ignore, much less impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the internal workings
within the judiciary amount its different components, what with the lower courts
considering such orders and decrees as forming part of the law of the land in
making their orders and decisions, whereas the Supreme Court is holding, as
it were, their effectivity at bay if it is not being indifferent to or ignoring them.
It is suggested that the President, being a man of law, committed to abide by
the decision of the Supreme Court, and if the Court feels that it cannot in the
meantime consider the enforcement of the new Constitution, he can wait for
its decision. Accepting the truth of this assertion, it does necessarily follow that
by this attitude of the President, considers the Supreme Court as still operating
under the Constitution. Quite on the contrary, it is a fact that he has given
instructions for the payment of the justices in accordance with the rate fixed in
the New Constitution. Not only that, official alter ego, the Secretary of Justice,
has been shoving this Court, since January 18, 1973, all matters related to the
administrative supervision of the lower courts which by the new charter has
been transferred from the Department of Justice to the Supreme Court, and
as far as I know, President has not countermanded the Secretary's steps in
that direction. That, on the other hand, the President has not augmented the
justices of the Court to complete the prescribed number of fifteen is, in my
appraisal, of no consequence considering that with the presence of ten justices
who are the Court now, there is a working quorum, and the addition of new
justices cannot in anyway affect the voting on the constitutional questions now
before Us because, while there sufficient justices to declare by their
unanimous vote illegality of Proclamation 1102, the votes of the justices to
added would only be committed to upholding the same, since they cannot by
any standard be expected to vote against legality of the very Constitution under
which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and, even
imperative, is that We are dealing here with a whole constitution that radically
modifies or alters only the form of our government from presidential
parliamentary but also other constitutionally institutions vitally affecting all
levels of society. It is, to mind, unrealistic to insist on that, fundamentally, the
1973 Constitution is the same 1935 Constitution, with a few improvements. A
cursory perusal of the former should convince anyone that it is in essence a
new one. While it does retain republicanism as the basic governmental tenet,
the institutional changes introduced thereby are rather radical and its social
orientation is decidedly more socialistic, just as its nationalistic features are
somewhat different in certain respects. One cannot but note that the change
embraces practically every part of the old charter, from its preamble down to
its amending and effectivity clauses, involving as they do the statement of
general principles, the citizenship and suffrage qualifications, the articles on
the form of government, the judiciary provisions, the spelling out of the duties
and responsibilities not only of citizens but also of officers of the government
and the provisions on the national economy as well as the patrimony of the
nation, not to mention the distinctive features of the general provisions. What
is more, the transitory provisions notably depart from traditional and orthodox
views in that, in general, the powers of government during the interim period
are more or less concentrated in the President, to the extent that the
continuation or discontinuance of what is now practically a one-man-rule, is
even left to his discretion. Notably, the express ratification of all proclamations,
orders, decrees and acts previously issued or done by the President, obviously
meant to encompass those issued during martial law, is a commitment to the
concept of martial law powers being implemented by President Marcos, in
defiance of traditional views and prevailing jurisprudence, to the effect that the
Executive's power of legislation during a regime of martial law is all inclusive
and is not limited to the matters demanded by military necessity. In other
words, the new constitution unlike any other constitution countenances the
institution by the executive of reforms which normally is the exclusive attribute
of the legislature.
Withal, the best proofs that by its expressed and implied intent, the Constitution
of 1973 is a new one, are that (1) Section 16 of its Article XVII which provides
that this constitution shall "supersede the Constitution of nineteen hundred and
thirty-five and all amendments thereto" and (2) its transitory provisions
expressly continue the effectivity of existing laws, offices and courts as well as
the tenure of all incumbent officials, not adversely affected by it, which would
have been unnecessary if the old constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he
incumbent members of the Judiciary (which include the Chief Justice and
Associate Justices of Supreme Court) may continue in office (under the
constitution) until they reach the age of seventy years, etc." By virtue of the
presumptive validity of the new charter, all of form part of the 15-man-Court
provided for therein correspondingly, We have in legal contemplation, ceased
in the meanwhile to be members of the 11-man-Court in the 1935 Constitution.
Should the Court finally decide that the Constitution is invalid, then We would
automatically revert to our positions in the 11-man- Court, otherwise, We would
just continue to be in our membership in the 15-man-Court, unless We feel We
cannot in conscience accept the legality of existence. On the other hand, if it
is assumed that We are the 11-man-Court and it happens that Our collective
decision is in favor of the new constitution, it would be problematical for any
dissenting justice to consider himself as included automatically in the 15-man-
Court, since that would tantamount to accepting a position he does not
honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is
invalid because the ratification of the 1973 Constitution it purports to declare
as having taken place as a result of the referendum above-referred to is
ineffective since it cannot be said on the basis of the said referendum that said
Constitution has been "approved by a majority of the votes cast at an election"
in the manner prescribed by Article XV the Constitution of 1935. More
specifically, they maintain that the word "election" in the said Article has
already acquired a definite accepted meaning out of the consistent holding in
the past of ratification plebiscites, and accordingly, no other form of ratification
can be considered contemplated by the framers of the Old Constitution than
that which had been followed 1935, 1937, 1939, 1940, 1946 and 1967, the last
three or four which were held under the supervision of the Commission on
Elections. Furthermore, they emphatically deny the veracity of the proclaimed
results of the referendum because, according to them the referendum was a
farce and its results were manufactured or prefabricated, considering that Mr.
Francisco Cruz, who is supposed to have submitted the final report to the
President, which served as basis for Proclamation 1102, had no official
authority to render the same, and it is inconceivable and humanly impossible
for anyone to have been able to gather, tabulate and canvass the 15 million
votes allegedly reported within the short period of time employed. Of course,
they also contend that in any event, there was no proper submission because
martial law per se creates constructive duress which deprives the voters of the
complete freedom needed for the exercise of their right of choice and actually,
there was neither time nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for the
respondents is that the matter raised in the petitions is a political one which
the courts are not supposed to inquire into, and, anyway, there has been a
substantial compliance with Article XV of the 1935 Constitution, inasmuch as,
disregarding unessential matters of form, the undeniable fact is that the voting
in the referendum resulted in the approval by the people of the New
Constitution.
I need not dwell at length on these variant positions of the parties. In my
separate opinion in the Plebiscite Cases, I already made the observation that
in view of the lack of solemnity and regularity in the voting as well as in the
manner of reporting and canvassing conducted in connection with the
referendum, I cannot say that Article XV of the Old Constitution has been
complied with, albeit I held that nonetheless, the Constitution of 1973 is already
in force. In order, however, to make myself clearer on some relevant points, I
would like to add a few considerations to what I have already said in the former
cases.
In my opinion in those cases, the most important point I took into account was
that in the face of the Presidential certification through Proclamation 1102 itself
that the New Constitution has been approved by a majority of the people and
having in mind facts of general knowledge which I have judicial notice of, I am
in no position to deny that the result of the referendum was as the President
had stated. I can believe that the figures referred to in the proclamation may
not accurate, but I cannot say in conscience that all of them are manufactured
or prefabricated, simply because I saw with own eyes that people did actually
gather and listen discussions, if brief and inadequate for those who are abreast
of current events and general occurrences, and that they did vote. I believe I
can safely say that what I have seen have also been seen by many others
throughout the country and unless it can be assumed, which honestly, I do not
believe to be possible, that in fact there were actually no meetings held and
no voting done in more places than those wherein there were such meetings
and votings, I am not prepared to discredit entirely the declaration that there
was voting and that the majority of the votes were in favor of the New
Constitution. If in fact there were substantially less than 14 million votes of
approval, the real figure, in my estimate, could still be significant enough and
legally sufficient to serve as basis for a valid ratification.
It is contended, however, that the understanding was that the referendum
among the Citizens Assemblies was to be in the nature merely of a loose
consultation and not an outright submission for purposes of ratification. I can
see that at the outset, when the first set of questions was released, such may
have been the idea. It must not be lost sight of, however, that if the newspaper
reports are to be believed, and I say this only because petitioners would
consider the newspapers as the official gazettes of the administration, the last
set of six questions were included precisely because the reaction to the idea
of mere consultation was that the people wanted greater direct participation,
thru the Citizens Assemblies, in decision-making regarding matters of vital
national interest. Thus, looking at things more understandingly and realistically
the two questions emphasized by counsel, namely, (1) Do yo approve of the
New Constitution? and (2) Do you want plebiscite to be called to ratify the new
Constitution? should be considered no longer as loose consultations but as
direct inquiries about the desire of the voters regarding the matters mentioned.
Accordingly, I take it that if the majority had expressed disapproval of the new
Constitution, the logical consequence would have been the complete
abandonment of the idea of holding any plebiscite at all. On the other hand, it
is very plain to see that since the majority has already approved the new
Constitution, a plebiscite would be superfluous. Clear as these rationalizations
may be, it must have been thought that if the holding of a plebiscite was to be
abandoned, there should be a direct and expressed desire of the people to
such effect in order to forestall as much as possible any serious controversy
regarding the non-holding of the plebiscite required by the letter of Section 16
of Article XVII, the effectivity clause, of the new Constitution. Oddly enough,
the "comments" accompanying the questions do strongly suggest this view.
And as it turned out, the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution?
capital is being made of the point that as so framed, the thrust of the said
question does not seek an answer of fact but of opinion. It is argued that it
would have been factual were it worded categorically thus Do you approve
the New Constitution? The contention would have been weighty were it not
unrealistic. I remember distinctly that the observation regarding the
construction of the subject question was not originally made by any of the
talented counsels for petitioners. It came from Mr. Justice Fred Ruiz Castro
whose mastery of the English language can rightly be the cause of envy of
even professors of English. None of the other members of the Court, as far as
I can recall, ever noticed how the said question is phrased, or if anyone of Us
did, I am not aware that he gave it more than passing attention. What I mean
is that if neither any of the distinguished and learned counsels nor any member
of the Court understood the said question otherwise than calling for a factual
answer instead of a mere opinion, how could anyone expect the millions of
unlettered members of the Citizens Assemblies to have noticed the point
brought out by Justice Castro? Truth to tell, I myself did not realize the
difference until Justice Castro gave it emphasis. Besides, reading the question
in the light of the accompanying "comment" corresponding to it in particular, I
am certain that any one who answered the same understood it in no other
sense than a direct inquiry as to whether or not, as a matter of fact, he
approves the New Constitution, and naturally, affirmative answer must be
taken as a categorical vote of approval thereof, considering, particularly, that
according to the reported result of the referendum said answer was even
coupled with the request that the President defer the convening of the Interim
National Assembly.
It is also contended that because of this reference in answer to that question
to the deferment of the convening of the interim assembly, the said answer is
at best a conditional approval not proper nor acceptable for purposes of
ratification plebiscite. The contention has no basis. In interest of accuracy, the
additional answer proposed in pertinent "comment" reads as follows: "But we
do not want Ad Interim Assembly to be convoked etc." On the assumption that
the actual answer, as reported, was of similar tenor, it is not fair to ascribe to
it the imposition of a condition. At most, the intention is no more than a
suggestion or a wish.
As regards said "comments", it must be considered that a martial law was
declared, the circumstances surrounding making of the Constitution acquired
a different and more meaningful aspect, namely, the formation of a new
society. From the point of view of the President and on the basis of intelligence
reports available to him, the only way to meet situation created by the
subversive elements was to introduce immediately effective reforms calculated
to redeem the people from the depth of retrogression and stagnation caused
by rampant graft and corruption in high places, influence peddling, oligarchic
political practices, private armies, anarchy, deteriorating conditions of peace
and order, the so inequalities widening the gap between the rich and the poor,
and many other deplorable long standing maladies crying for early relief and
solution. Definitely, as in the case of rebellious movement that threatened the
Quirino Administration, the remedy was far from using bullets alone. If a
constitution was to be approved as an effective instrument towards the
eradication of such grave problems, it had to be approved without loss of time
and sans the cumbersome processes that, from the realistic viewpoint, have
in the past obstructed rather than hastened the progress of the people. Stated
otherwise, in the context of actualities, the evident objective in having a new
constitution is to establish new directions in the pursuit of the national
aspirations and the carrying out of national policies. Only by bearing these
considerations in mind can the "comments" already referred to be properly
appreciated. To others said "comments" may appear as evidence of corruption
of the will of those who attended the assemblies, but actually, they may also
be viewed in the same light as the sample ballots commonly resorted to in the
elections of officials, which no one can contend are per semeans of coercion.
Let us not forget that the times are abnormal, and prolonged dialogue and
exchange of ideas are not generally possible, nor practical, considering the
need for faster decisions and more resolute action. After all voting on a whole
new constitution is different from voting on one, two or three specific proposed
amendments, the former calls for nothing more than a collective view of all the
provisions of the whole charter, for necessarily, one has to take the good
together with the bad in it. It is rare for anyone to reject a constitution only
because of a few specific objectionable features, no matter how substantial,
considering the ever present possibility that after all it may be cured by
subsequent amendment. Accordingly, there was need to indicate to the people
the paths open to them in their quest for the betterment of their conditions, and
as long as it is not shown that those who did not agree to the suggestions in
the "comments" were actually compelled to vote against their will, I am not
convinced that the existence of said "comments" should make any appreciable
difference in the court's appraisal of the result of the referendum.
I must confess that the fact that the referendum was held during martial law
detracts somehow from the value that the referendum would otherwise have
had. As I intimated, however, in my former opinion, it is not fair to condemn
and disregard the result of the referendum barely because of martial law per
se. For one thing, many of the objectionable features of martial law have not
actually materialized, if only because the implementation of martial law since
its inception has been generally characterized by restraint and consideration,
thanks to the expressed wishes of the President that the same be made
"Philippine style", which means without the rigor that has attended it in other
lands and other times. Moreover, although the restrictions on the freedom of
speech, the press and movement during martial law do have their
corresponding adverse effects on the area of information which should be
open to a voter, in its real sense what "chills" his freedom of choice and mars
his exercise of discretion is suspension of the privilege of the writ of habeas
corpus. The reason is simply that a man may freely and correctly vote even if
the needed information he possesses as to the candidates or issues being
voted upon is more or less incomplete, but when he is subject to arrest and
detention without investigation and without being informed of the cause
thereof, that is something else which may actually cause him to cast a captive
vote. Thus it is the suspension of the writ of habeas corpus accompanying
martial law that can cause possible restraint on the freedom choice in an
election held during martial law. It is a fact, however, borne by history and
actual experience, that in the Philippines, the suspension of the privilege of the
writ habeas corpus has never produced any chilling effect upon the voters,
since it is known by all that only those who run afoul the law, saving
inconsequential instances, have any cause for apprehension in regard to the
conduct by them of the normal activities of life. And so it is recorded that in the
elections 1951 and 1971, held while the privilege of writ of habeas corpus was
under suspension, the Filipino voters gave the then opposition parties
overwhelming if not sweeping victories, in defiance of the respective
administrations that ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show that
the result of the referendum may considered as sufficient basis for declaring
that the New Constitution has been ratified in accordance with the amending
clause of the 1935 Constitution. I reiterate that in point of law, I find neither
strict nor substantial compliance. The foregoing discussion is only to counter,
if I may, certain impression regarding the general conditions obtaining during
and in relation to the referendum which could have in one way or another
affected the exercise of the freedom of choice and the use of discretion by the
members of the Citizens Assemblies, to the end that as far as the same
conditions may be relevant in my subsequent discussions of the acceptance
by the people of the New Constitution they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been accepted or
adopted by the people. And on this premise, my considered opinion is that the
Court may no longer decide these cases on the basis of purely legal
considerations. Factors which are non-legal but nevertheless ponderous and
compelling cannot be ignored, for their relevancy is inherent in the issue itself
to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that
the question of whether or not there was proper submission under Presidential
Decree No. 73 is justiciable, and I still hold that the propriety of submission
under any other law or in any other form is constitutionally a fit subject for
inquiry by the courts. The ruling in the decided cases relied upon by petitioners
are to this effect. In view, however, of the factual background of the cases at
bar which include ratification itself, it is necessary for me to point out that when
it comes to ratification, I am persuaded that there should be a boundary
beyond which the competence of the courts no longer has any reason for
being, because the other side is exclusively political territory reserved for their
own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by the
people. Others may feel there is not enough indication of such acceptance in
the record and in the circumstances the Court can take judicial notice of. For
my part, I consider it unnecessary to be strictly judicial in inquiring into such
fact. Being personally aware, as I have already stated, that the Citizens
Assemblies did meet and vote, if irregularly and crudely, it is not for me to
resort, for the purposes of these cases, to judicial tape and measure, to find
out with absolute precision the veracity of the total number of votes actually
cast. After all, the claims that upon a comparison of conflicting reports, cases
of excess votes may be found, even if extrapolated will not, as far as I can
figure out, suffice to overcome the outcome officially announced. Rather than
try to form a conclusion out of the raw evidence before Us which the parties
did not care to really complete, I feel safer by referring to the results announced
in the proclamation itself. Giving substantial allowances for possible error and
downright manipulation, it must not be overlooked that, after all, their having
been accepted and adopted by the President, based on official reports
submitted to him in due course of performance of duty of appropriate
subordinate officials, elevated them to the category of an act of a coordinate
department of the government which under the principle separation of powers
is clothed with presumptive correctness or at least entitled to a high degree of
acceptability, until overcome by better evidence, which in these cases does
not exist. In any event, considering that due to the unorthodoxy of the
procedure adopted and the difficulty of an accurate checking of all the figures,
I am unable to conceive of any manageable means of acquiring information
upon which to predicate a denial, I have no alternative but to rely on what has
been officially declared. At this point, I would venture to express the feeling
that if it were not generally conceded that there has been sufficient showing of
the acceptance in question by this time, there would have been already
demonstrative and significant indications of a rather widespread, if not
organized resistance in one form or another. Much as they are to be given due
recognition as magnificent manifestations of loyalty and devotion to principles,
I cannot accord to the filing of these cases as indicative enough of the general
attitude of the people.
It is true that in the opinion I had the privilege of penning the Court in Tolentino
vs. Comelec, 41 SCRA 702, I made strong and unequivocal pronouncements
to the effect that any amendment to the Constitution of 1935, to be valid, must
appear to have been made in strict conformity with the requirements of Article
XV thereof. What is more, that decision asserted judicial competence to inquire
into the matter of compliance or non compliance as a justiciable matter. I still
believe in the correctness of those views and I would even add that I sincerely
feel it reflects the spirit of the said constitutional provision. Without trying to
strain any point however, I, submit the following considerations in the context
of the peculiar circumstances of the cases now at bar, which are entirely
different from those in the backdrop of the Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not just an amendment
of a particular provision of an existing Constitution; here, it is, as I have
discussed earlier above, an entirely new Constitution that is being proposed.
This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who
was himself the petitioner in the case I have just referred to is, now inviting Our
attention to the exact language of Article XV and suggesting that the said
Article may be strictly applied to proposed amendments but may hardly govern
the ratification of a new Constitution. It is particularly stressed that the Article
specifically refers to nothing else but "amendments to this Constitution" which
if ratified "shall be valid as part of this Constitution." Indeed, how can a whole
new constitution be by any manner of reasoning an amendment to any other
constitution and how can it, if ratified, form part of such other constitution? In
fact, in the Tolentino case I already somehow hinted this point when I made
reference in the resolution denying the motion for reconsideration to the fact
that Article XV must be followed "as long as any amendment is formulated and
submitted under the aegis of the present Charter." Said resolution even added.
"(T)his is not to say that the people may not, in the exercise of their inherent
revolutionary powers, amend the Constitution or promulgate an entirely new
one otherwise.".
It is not strange at all to think that the amending clause of a constitution should
be confined in its application only to proposed changes in any part of the same
constitution itself, for the very fact that a new constitution is being adopted
implies a general intent to put aside the whole of the old one, and what would
be really incongrous is the idea that in such an eventuality, the new
Constitution would subject its going into effect to any provision of the
constitution it is to supersede, to use the language precisely of Section 6,
Article XVII, the effectivity clause, of the New Constitution. My understanding
is that generally, constitutions are self-born, they very rarely, if at all, come into
being, by virtue of any provision of another constitution. 3 This must be the
reason why every constitution has its own effectivity clause, so that if, the
Constitutional Convention had only anticipated the idea of the referendum and
provided for such a method to be used in the ratification of the New
Constitution, I would have had serious doubts as to whether Article XV could
have had priority of application.
2. When an entirely new constitution is proposed to supersede the existing
one, we cannot but take into consideration the forces and the circumstances
dictating the replacement. From the very nature of things, the proposal to
ordain a new constitution must be viewed as the most eloquent expression of
a people's resolute determination to bring about a massive change of the
existing order, a meaningful transformation of the old society and a responsive
reformation of the contemporary institutions and principles. Accordingly,
should any question arise as to its effectivity and there is some reasonable
indication that the new charter has already received in one way or another the
sanction of the people, I would hold that the better rule is for the courts to defer
to the people's judgment, so long as they are convinced of the fact of their
approval, regardless of the form by which it is expressed provided it be
reasonably feasible and reliable. Otherwise stated, in such instances, the
courts should not bother about inquiring into compliance with technical
requisites, and as a matter of policy should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of great relevancy.
I refer to the ostensible reaction of the component elements, both collective
and individual, of the Congress of the Philippines. Neither the Senate nor the
House of Representatives has been reported to have even made any
appreciable effort or attempt to convene as they were supposed to do under
the Constitution of 1935 on January 22, 1973 for the regular session. It must
be assumed that being composed of experienced, knowledgeable and
courageous members, it would not have been difficult for said parliamentary
bodies to have conceived some ingenious way of giving evidence of their
determined adherence to the Constitution under which they were elected.
Frankly, much as I admire the efforts of the handful of senators who had their
picture taken in front of the padlocked portals of the Senate chamber, I do not
feel warranted to accord such act as enough token of resistance. As counsel
Tolentino has informed the court, there was noting to stop the senators and
the congressmen to meet in any other convenient place and somehow officially
organize themselves in a way that can logically be considered as a session,
even if nothing were done than to merely call the roll and disperse. Counsel
Tolentino even pointed out that if there were not enough members to form a
quorum, any smaller group could have ordered the arrest of the absent
members. And with particular relevance to the present cases, it was not
constitutionally indispensable for the presiding officers to issue any call to the
members to convene, hence the present prayers for mandamus have no legal
and factual bases. And to top it all, quite to the contrary, the records of the
Commission on Elections show that at least 15 of 24 senators and over 95 out
of less than 120 members of the House of Representatives, have officially and
in writing exercised the option given to them to join the Interim National
Assembly under the New Constitution, thereby manifesting their acceptance
of the new charter.
Now, having these facts in mind, and it being obvious that of the three great
departments of the government under the 1935 Constitution, two, the
Executive and the Legislative, have already accepted the New Constitution
and recognized its enforceability and enforcement, I cannot see how this
Supreme Court can by judicial fiat hold back the political developments taking
place and for the sake of being the guardian of the Constitution and the
defender of its integrity and supremacy make its judicial power prevail against
the decision of those who were duly chosen by the people to be their
authorized spokesmen and representatives. It is not alone the physical futility
of such a gesture that concerns me. More than that, there is the stark reality
that the Senators and the Congressmen, no less than the President, have
taken the same oath of loyalty to the Constitution that we, the Justices, have
taken and they are, therefore, equally bound with Us to preserve and protect
the Constitution. If as the representatives of the people, they have already
opted to accept the New Constitution as the more effective instrument for
fulfillment of the national destiny, I really wonder if there is even any idealistic
worth in our desperately clinging by Ourselves alone to Our sworn duty vis-a-
vis the 1935 Constitution. Conscious of the declared objectives of the new
dispensation and cognizant of the decisive steps being with the least loss of
time, towards their accomplishment, cannot but feel apprehensive that instead
of serving the best interests of our people, which to me is in reality the real
meaning of our oath of office, the Court might be standing in the way of the
very thing our beloved country needs to retrieve its past glory and greatness.
In other words, it is my conviction that what these cases demand most of all is
not a decision demonstrative of our legal erudition and Solomonic wisdom but
an all rounded judgment resulting from the consideration of all relevant
circumstances, principally the political, or, in brief, a decision more political
than legal, which a court can render only by deferring to the apparent judgment
of the people and the announcement thereof by the political departments of
the government and declaring the matter non-justiciable.
4. Viewed from the strictly legal angle and in the light of judicial methods of
ascertainment, I cannot agree with the Solicitor General that in the legal sense,
there has been at least substantial compliance with Article XV of the 1935
Constitution, but what I can see is that in a political sense, the answers to the
referendum questions were not given by the people as legal conclusions. I
take it that when they answered that by their signified approval of the New
Constitution, they do not consider it necessary to hold a plebiscite, they could
not have had in mind any intent to do what was constitutionally improper.
Basically accustomed to proceed along constitutional channels, they must
have acted in the honest conviction that what was being done was in
conformity with prevailing constitutional standards. We are not to assume that
the sovereign people were indulging in a futile exercise of their supreme
political right to choose the fundamental charter by which their lives, their
liberties and their fortunes shall be safeguarded. In other words, we must
perforce infer that they meant their decision to count, and it behooves this
Court to render judgment herein in that context. It is my considered opinion
that viewed understandingly and realistically, there is more than sufficient
ground to hold that, judged by such intent and, particularly, from the political
standpoint, the ratification of the 1973 Constitution declared in Proclamation
1102 complies substantially with Article XV of the 1935 Charter, specially when
it is considered that the most important element of the ratification therein
contemplated is not in the word "election", which conceivably can be in many
feasible and manageable forms but in the word "approved" which may be said
to constitute the substantiality of the whole article, so long as such approval is
reasonably ascertained. In the last analysis, therefore, it can be rightly said,
even if only in a broad sense, that the ratification here in question was
constitutionally justified and justifiable.
5. Finally, if any doubt should still linger as to the legitimacy of the New
Constitution on legal grounds, the same should be dispelled by viewing the
situation in the manner suggested by Counsel Tolentino and by the writer of
this opinion in his separate opinion, oft-referred to above, in the Plebiscite
Cases that is, as an extra constitutional exercise by the people, under the
leadership of President Marcos, of their inalienable right to change their
fundamental charter by any means they may deem appropriate, the moment
they are convinced that the existing one is no longer responsive to their
fundamental, political and social needs nor conducive to the timely attainment
of their national destiny. This is not only the teaching of the American
Declaration of Independence but is indeed, a truth that is self-evident. More, it
should be regarded as implied in every constitution that regardless of the
language of its amending clause, once the people have given their sanction to
a new charter, the latter may be deemed as constitutionally permissible even
from the point of view of the preceding constitution. Those who may feel
restrained to consider this view out of respect to the import of Tolentino vs.
Comelec, supra., would be well advised to bear in mind that the case was
decided in the context of submission, not accomplished ratification.
V respect are all theirs for their zeal and tenacity, their industry and wisdom, their
The language of the disputed amending clause of the 1935 Constitution should
not be deemed as the be all and end all the nation. More important than even
the Constitution itself with all its excellent features, are the people living under
it their happiness, their posterity and their national destiny. There is nothing
that cannot be sacrificed in the pursuit of these objectives, which constitute the
totality of the reasons for national existence. The sacred liberties and freedom
enshrined in it and the commitment and consecration thereof to the forms of
democracy we have hitherto observed are mere integral parts of this totality;
they are less important by themselves.
What seems to me to be bothering many of our countrymen now is that by
denying the present petitions, the Court would be deemed as sanctioning, not
only the deviations from traditional democratic concepts and principles but also
the qualified curtailment of individual liberties now being practiced, and this
would amount, it is feared, to a repudiation of our oath to support and defend
the Constitution of 1935. This is certainly something one must gravely ponder
upon. When I consider, however, that the President, the Vice President, the
members of both Houses of Congress, not to speak of all executive
departments and bureaus under them as well as all the lower courts, including
the Court of Appeals have already accepted the New Constitution as an
instrument of a meaningful nationwide-all-level change in our government and
society purported to make more realistic and feasible, rather than idealistic and
cumbersomely deliberative, the attainment of our national aspirations, I am led
to wonder whether or not we, as members of the Supreme Court are being
true to our duty to our people by refusing to follow suit and accept the realities
of the moment, despite our being convinced of the sincerity and laudableness
of their objectives, only because we feel that by the people's own act of
ratifying the Constitution of 1935, they have so encased themselves within its
provisions and may, therefore, no longer take measures to redeem themselves
from the situation brought about by the deficiencies of the old order, unless
they act in strict conformity therewith. I cannot believe that any people can be
so stifled and enchained. In any event, I consider it a God-given attribute of
the people to disengage themselves, if necessary, from any covenant that
would obstruct their taking what subsequently appears to them to be the better
road to the promotion and protection of their welfare. And once they have
made their decision in that respect, whether sophisticatedly or crudely,
whether in legal form or otherwise, certainly, there can be no court or power
on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and eloquent
appeals of Counsels Taada and Salonga that these cases be decided on the
basis of conscience. That is exactly what I am doing. But if counsel mean that
only by granting their petitions can this Court be worthily the bulwark of the
people's faith in the government, I cannot agree, albeit my admiration and
patriotism and devotion to principle. Verily, they have brought out everything
in the Filipino that these cases demand.
In times of national emergencies and crises, not arising from foreign invasion,
we need not fear playing opposite roles, as long as we are all animated by
sincere love of country and aim exclusively at the attainment of the national
destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio Luna,
Mabini and so also with our patriots of the recent generations, Quezon,
Osmea, Roxas, Laurel and Recto, to mention only some of them, had their
differences of views and they did not hesitate to take diametrically opposing
sides that even reached tragic proportions, but all of them are admired and
venerated.
It is my faith that to act with absolute loyalty to our country and people is more
important than loyalty to any particular precept or provision of the Constitution
or to the Constitution itself. My oath to abide by the Constitution binds me to
whatever course of action I feel sincerely is demanded by the welfare and best
interests of the people.
In this momentous juncture of our history, what is imperative is national unity.
May God grant that the controversies the events leading to these cases have
entail will heal after the decision herein is promulgated, so that all us Filipinos
may forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions
for mandamus and prohibition without costs.
MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution
prescribes a procedure for the ratification of constitutional amendments or of
a new Constitution and that such procedure was no complied with, the validity
of Presidential Proclamation No. 1102 is a political, not a justiciable, issue; for
it is inseparably or inextricably link with and strikes at, because it is decisive
of, the validity of ratification and adoption of, as well as acquiescence of people
in, the 1973 Constitution and the legitimacy of the government organized and
operating thereunder. And being political, it is beyond the ambit of judicial
inquiry, tested by the definition of a political question enunciated inTaada, et.
al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will not
do violence to rights vested under the new Constitution, to international
commitments forged pursuant thereto and to decisions rendered by the judicial
as well as quasi-judicial tribunals organized and functioning or whose
jurisdiction has been altered by the 1973 Constitution and the government
established thereunder, and will dissipate any confusion in the minds of the
citizenry, who have been obeying the mandates of the new Constitution, as
well as exercising the rights and performing the obligations defined by the new
Constitution, and decrees and orders issued in implementation of the same
and cooperating with the administration in the renovation of our social,
economic and political system as re-structured by the 1973 Constitution and
by the implementing decrees and orders (see Miller vs. Johnson, 18 SW 522,
522-526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in
behalf of the Court, defined a political question as one which, under the
Constitution, is "to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government." (Taada, et al. vs.
Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "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
ratification." Under Article XV of the 1935 Constitution, the power to propose
constitutional amendments is vested in Congress or in a constitutional
convention; while the power to ratify or reject such proposed amendments or
new Constitution is reserved by the sovereign people. The nullification of
Proclamation No. 1102 would inevitably render inoperative the 1973
Constitution, which is in fact the express prayer of the petitioners in G.R. No.
L-36164. Regardless of the modality of submission or ratification or adoption
even if it deviates from or violates the procedure delineated therefore by the
old Constitution once the new Constitution is ratified, adopted and/or
acquiesced in by the people or ratified even by a body or agency not duly
authorized therefor but is subsequently adopted or recognized by the people
and by the other official organs and functionaries of the government
established under such a new Constitution, this Court is precluded from
inquiring into the validity of such ratification, adoption or acquiescence and of
the consequent effectivity of the new Constitution. This is as it should be in a
democracy, for the people are the repository of all sovereign powers as well
as the source of all governmental authority (Pole vs. Gray, 104 SO 2nd 841
[1958]). This basic democratic concept is expressly restated in Section 1 of
Article II of the Declaration of Principles of the 1935 and 1973 Constitutions,
thus: "Sovereignty resides in the people and all government authority
emanates from them."
The legality of the submission is no longer relevant; because the ratification,
adoption and/or acquiescence by the people cures any infirmity in its
submission or any other irregularities therein which are deemed mandatory
before submission as they are considered merely directory after such
ratification or adoption or acquiescence by the people. As Mr. Justice Brewer,
then of the Kansas State Supreme Court and later Associate Justice of the
Federal Supreme Court, stated in re Prohibitory Amendment Cases (24
Kansas 700 & 710 Reprint 499, 506): "The two important, vital elements of the
Legislature and a majority of the popular vote. Beyond these, other provisions
are mere machineries and forms. They may not be disregarded, because by
them certainty as to the essentials is secured. But they are not themselves the
essentials." (Cited in Larken vs. Gronna, 285 NW 59, 61-64, 1939).
This was the ruling by the American Supreme Court in the 1939 case
of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice
Hughes, speaking for the majority, stated that:
... Thus the political departments of the government dealt with
the effect of both previous rejection and attempted withdrawal
and determined that both were ineffectual in the presence of
an actual ratification ... . This decision by the political
departments of the Government as to the validity of the
adoption of the Fourteenth amendment has been accepted.
We think that in accordance with this historic precedent the
question of the efficacy of ratifications by state legislatures, in
the light of previous rejection or attempted withdrawal, should
be regarded as a political question pertaining to the political
 departments, with the ultimate authority in the Congress in the
exercise of its control over the promulgation of the adoption of
the amendment.
This view was likewise emphasized by Mr. Justice Black in his concurring
opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join, thus:
The Constitution grants Congress exclusive power to control
submission of constitutional amendments. Final determination by
Congress that ratification by three-fourths of the States has taken
place "is conclusive upon the courts." In the exercise of that power,
Congress, of course, is governed by the Constitution. However,
whether submission, intervening procedure or Congressional
determination of ratification conforms to the commands of the
Constitution, calls for decisions by a "political department" of
questions of a type which this Court has frequently designated
"political." And decision of a "political question" by the "political
department" to which the Constitution has committed it "conclusively
binds the judges, as well as all other officers, citizens and subjects
of...government." Proclamation under authority of Congress that an
amendment has been ratified will carry with it a solemn assurance by
the Congress that ratification has taken place as the Constitution
commands. Upon this assurance a proclaimed amendment must be
accepted as a part of the Constitution, leaving to the judiciary its
traditional authority of interpretation. To the extent that the Court's
opinion in the present case even impliedly assumes a power to make
judicial interpretation of the exclusive constitutional authority of
Congress over submission and ratification of amendments, we are
unable to agree... (American Constitutional Issues, by Pritchett, 1962
Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our
Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29,
1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16,
1971, 41 SCRA 702) on which petitioners place great reliance that the
courts may review the propriety of a submission of a proposed constitutional
amendment before the ratification or adoption of such proposed amendment
by the sovereign people, hardly applies to the cases at bar; because the issue
involved in the aforesaid cases refers to only the propriety of the submission
of a proposed constitutional amendment to the people for ratification, unlike
the present petitions, which challenge inevitably the validity of the 1973
Constitution after its ratification or adoption thru acquiescence by the
sovereign people. As heretofore stated, it is specious and pure sophistry to
advance the reasoning that the present petitions pray only for the nullification
of the 1973 Constitution and the government operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative
powers to Congress. It is part of the inherent powers of the people
as the repository of sovereignty in a republican state, such as ours
to make, and hence, to amend their own Fundamental Law. Congress
may propose amendments to the same explicitly grants such power.
Hence, when exercising the same, it is said that Senators and
Members of the House of Representatives act, not as members, but
as component elements of a constituent assembly. When acting as
such, the members of Congress derive their authority from the
Constitution, unlike the people, when performing the same function,
for their authority does not emanate from the Constitution they
are the very source of all powers of government, including the
Constitution itself. (21 SCRA 787)
We did not categorically and entirely overturn the doctrine in Mabanag vs.
Lopez Vito (78 Phil. 1) that both the proposal to amend and the ratification of
such a constitutional amendment are political in nature forming as they do the
essential parts of one political scheme the amending process. WE merely
stated therein that the force of the ruling in the said case of Mabanag vs. Lopez
Vito has been weakened by subsequent cases. Thus, We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the
issue submitted thereto as a political one, declined to pass upon the
question whether or not a given number of votes cast in Congress in
favor of a proposed amendment to the Constitution which was
being submitted to the people for ratification satisfied the three
fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate, Avelino vs. Cuenco, Taada vs. Cuenco
and Macias vs. Commission on Elections. In the first, we held the
officers and employees of the Senate Electoral Tribunal are
supervision and control, not of that of the Senate President, claimed
by the latter; in the second, this Court proceeded to determine the
number of Senators necessary for a quorum in the Senate; in the third
we nullified the election, by Senators belonging to the party having the
largest number of votes in said chamber purporting to act on behalf of
the party having the second largest number of votes therein, of two (2)
Senators belonging to the first party, as members, for the second
party, of the Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the
 representative districts for the House of Representatives, upon the
ground that the apportionment had 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. (21 SCRA pp. 785-786);
for which reason We concluded
In short, the issue whether or not a resolution of Congress before
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 vs. Lopez Vito, the latter should be deemed
modified accordingly. (p. 787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA
703-714).
The inevitable consequence therefore is that the validity of the ratification or
adoption of or acquiescence by the people in the 1973 Constitution, remains
a political issue removed from the jurisdiction of this Court to review.
One more word about the Gonzales and Tolentino cases. Both primarily
stressed on the impropriety of the submission of a proposed constitutional
amendment. Courts do not deal with propriety or wisdom or absence of either
of an official act or of a law. Judicial power concerns only with the legality or
illegality, constitutionality or unconstitutionality of an act: it inquires into the
existence of power or lack of it. Judicial wisdom is not to be pitted against the
wisdom of the political department of the government.
The classic example of an illegal submission that did not impair the validity of
the ratification or adoption of a new Constitution is the case of the Federal
Constitution of the United States. It should be recalled that the thirteen (13)
original states of the American Union which succeeded in liberating
themselves from England after the revolution which began on April 19, 1775
with the skirmish at Lexington, Massachusetts and ended with the surrender
of General Cornwallis at Yorktown, Virginia, on October 19,
1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) adopted their Articles of
Confederation and Perpetual Union, that was written from 1776 to 1777 and
ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About
six thereafter, the Congress of the Confederation passed a resolution on
February 21, 1787 calling for a Federal Constitutional Convention "for the sole
and express purpose of revising the articles of confederation ... ." (Appendix I,
Federalist, Modern Library ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of the
Articles of Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be inviolably observed in every
state, and the union shall be perpetual; nor shall any alterations at any
time hereafter be made in any of them; unless such alteration be
agreed to in a congress of the united states, and be afterwards
confirmed by the legislatures of every state. (See the Federalist,
Appendix II, Modern Library Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the Articles of Confederation and
Perpetual Union for the alteration for the ratification of the Federal Constitution
as drafted by the Philadelphia Convention were not followed. Fearful the said
Federal Constitution would not be ratified by the legislatures as prescribed, the
Philadelphia Convention adopted a resolution requesting the Congress of the
Confederation to pass a resolution providing that the Constitution should be
submitted to elected state conventions and if ratified by the conventions in nine
(9) states, not necessarily in all thirteen (13) states, the said Constitution shall
take effect.
Thus, history Professor Edward Earle Mead of Princeton University recorded
that:
It would have been a counsel of perfection to consign the new
constitution to the tender mercies of the legislatures of each and all of
the 13 states. Experience clearly indicated that ratification then would
have had the same chance as the scriptural camel passing through
the eye of a needle. It was therefore determined to recommend to
Congress that the new Constitution be submitted to conventions in the
several states especially elected to pass upon it and that, furthermore,
the new government should go into effect if and when it should be
ratified by nine of the thirteen states ... . (The Federalist, Modern
Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix;
emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state
politicians would be Antifederalist, provided for ratification of the
Constitution by popularly elected conventions in each state.
Suspecting that Rhode Island, at least, would prove recalcitrant, it
declared that the Constitution would go into effect as soon as nine
states ratified. The convention method had the further advantage that
judges, ministers, and others ineligible to state legislatures, could be
elected to a convention. The nine-state provision was, of course,
 mildly revolutionary. But the Congress of the Confederation, still sitting
in New York to carry on federal government until relieved, formally
submitted the new constitution to the states and politely faded out
before the first presidential inauguration. (The Oxford History of the
Am. People, by Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June 21,
1788 and by the last four states on May 29, 1790 (12 C.J. p. 679 footnote, 16
C.J.S., 27. by the state conventions and not by all thirteen (13) state
legislatures as required by Article XIII of the Articles of Confederation and
Perpetual Union aforequoted and in spite of the fact that the Federal
Constitution as originally adopted suffers from two basic infirmities,
namely, the absence of a bill of Rights and of a provision affirming the power
of judicial review.
The liberties of the American people were guaranteed by subsequent
amendments to the Federal Constitution. The doctrine of judicial review has
become part of American constitutional law only by virtue of a judicial
pronouncement by Chief Justice Marshall in the case of Marbury vs.
Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of the
ratification of the American Constitution, nor against the legitimacy of the
government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330),
which enunciated the principle that the validity of a new or revised Constitution
does not depend on the method of its submission or ratification by the people,
but on the fact or fiat or approval or adoption or acquiescence by the people
which fact of ratification or adoption or acquiescence is all that is essential, the
Court cited precisely the case of the irregular revision and ratification by state
conventions of the Federal Constitution, thus:
No case identical in its facts with the case now under consideration
has been called to our attention, and we have found none. We think
that the principle which we apply in the instant case was very clearly
applied in the creation of the constitution of the United States. The
convention created by a resolution of Congress had authority to do
one thing, and one only, to wit, amend the articles of confederation.
This they did not do, but submitted to the sovereign power, the people,
a new constitution. In this manner was the constitution of the United
States submitted to the people and it became operative as the organic
law of this nation when it had been properly adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the convention that
formulated the constitution of the United States, has this to say: "The
convention proceeded to do, and did accomplish, what they were not
authorized to do by a resolution of Congress that called them together.
That resolution plainly contemplated amendments to the articles of
confederation, to be submitted to and passed by the Congress, and
afterwards ratified by all the State legislatures, in the manner pointed
out by the existing organic law. But the convention soon became
convinced that any amendments were powerless to effect a cure; that
the disease was too deeply seated to be reached such tentative
means. They saw that the system they were called to improve must
be totally abandoned, and that the national idea must be re-
established at the center of their political society. It was objected by
some members, that they had no power, no authority, to construct a
new government. They had no authority, if their decisions were to be
final; and no authority whatsoever, under the articles of confederation,
to adopt the course they did. But they knew that their labors were only
to be suggestions; and that they as well as any private individuals, and
any private individuals as well as they, had a right to propose a plan
of government to the people for their adoption. They were, in fact, a
mere assemblage of private citizens, and their work had no more
binding sanction than a constitution drafted by Mr. Hamilton in his
office would have had. The people, by their expressed will,
transformed this suggestion, this proposal, into an organic law, and
the people might have done the same with a constitution submitted to
them by a single citizen."
xxx xxx xxx
... When the people adopt a completely revised or new constitution,
the framing or submission of the instrument is not what gives it binding
force and effect. The fiat of the people and only the fiat of the people,
can breathe life into a constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never justified in placing by
implication a limitation upon the sovereign. This would be an
authorized exercise of sovereign power by the court. In State v. Swift,
69 Ind. 505, 519, the Indiana Supreme Court said: "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; ... ." (37 SE 327-328, 329, emphasis
supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to pass upon this question,
and were compelled to hold that the act of February 23, 1887, is
unconstitutional and void, it would not, in our opinion, by any means
follow that the amendment is not a part of our state Constitution. In the
recent case of Taylor vs. Commonwealth (Va.) 44 S.E. 754, the
Supreme Court of Virginia hold that their state Constitution of 1902,
having been acknowledged and accepted by the officers administering
the state government, and by the people, and being in force without
opposition, must be regarded as an existing Constitution irrespective
of the question as to whether or not the convention which promulgated
it had authority so to do without submitting it to a vote of the people.
In Brittle v. People, 2 Neb. 198, is a similar holding as to certain
provisions of the Nebraska Constitution of 1886, which were added by
the Legislature at the requirement of Congress, though never
submitted to the people for their approval." (97 NW 349-350; emphasis
supplied).
Against the decision in the Wheeler case, supra, confirming the validity of the
ratification and adoption of the American Constitution, in spite of the fact that
such ratification was in clear violation of the prescription on alteration and
ratification of the Articles of Confederation and Perpetual Union, petitioners in
G.R. No. L-36165 dismissed this most significant historical fact by calling the
Federal Constitution of the United States as a revolutionary one, invoking the
opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27, that it was a
revolutionary constitution because it did not obey the requirement that the
Articles of Confederation and Perpetual Union can be amended only with the
consent of all thirteen (13) state legislatures. This opinion does not cite any
decided case, but merely refers to the footnotes on the brief historic account
of the United States Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p.
18 of their main Notes, refer US to pp. 270-316 of the Oxford History of the
American People, 1965 Ed. by Samuel Eliot Morison, who discusses the
Articles of Confederation and Perpetual Union in Chapter XVIII captioned
"Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX
on "The Creative Period in Politics, 1785-1788," Professor Morison delineates
the genesis of the Federal Constitution, but does not refer to it even implicitly
as revolutionary constitution (pp. 297-316). However, the Federal Constitution
may be considered revolutionary from the view point of McIver if the
term revolution is understood in "its wider sense to embrace decisive changes
in the character of government, even though they do not involve the violent
overthrow of an established order, ... ." (R.M. MacIver, The Web of
Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a revolutionary
constitution. The Articles of Confederation and Perpetual Union that was in
force from July 12, 1776 to 1788, forged as it was during the war of
independence was a revolutionary constitution of the thirteen (13) states. In
the existing Federal Constitution of the United States which was adopted
seven (7) or nine (9) years after the thirteen (13) states won their
independence and long after popular support for the government of the
Confederation had stabilized was not a product of a revolution. The Federal
Constitution was a "creation of the brain and purpose of man" in an era of
peace. It can only be considered revolutionary in the sense that it is a radical
departure from its predecessor, the Articles of Confederation and Perpetual
Union.
It is equally absurd to affirm that the present Federal Constitution of the United
States is not the successor to the Articles of Confederation and Perpetual
Union. The fallacy of the statement is so obvious that no further refutation is
needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102
strikes at the validity and enforceability of the 1973 Constitution and of the
government established and operating thereunder. Petitioners pray for a
declaration that the 1973 Constitution is inoperative (L-36164). If Proclamation
No. 1102 is nullified, then there is no valid ratification of the 1973 Constitution
and the inevitable conclusion is that the government organized and functioning
thereunder is not a legitimate government.
That the issue of the legitimacy of a government is likewise political and not
justiciable, had long been decided as early as the 1849 case of Luther vs.
Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of Taylor vs.
Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the case
of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S.
118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements
in both Borden and Beckham cases, it is sufficient for us to quote the decision
in Pacific States Telephone and Telegraph Co., supra, penned by Mr. Chief
Justice White, who re-stated:
In view of the importance of the subject, the apparent
misapprehension on one side and seeming misconception on the
other, suggested by the argument as to the full significance of the
previous doctrine, we do not content ourselves with a mere citation of
the cases, but state more at length than we otherwise would the issues
and the doctrine expounded in the leading and absolutely controlling
case Luther v. Borden, 7 How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this inquiry, proposed by
the plaintiff, and it should be decided that the character government
had no legal existence during the period of time above mentioned,
if it had been annulled by the adoption of the opposing government,
then the laws passed by its legislature during that time were
nullities; its taxes wrongfully collected, its salaries and compensations
to its officers illegally paid ; its public accounts improperly settled and
the judgments and sentences of its courts in civil and criminal cases
null and void, and the officers who carried their decisions into
operation answerable as trespassers, if not in some cases as
criminals."
xxx xxx xxx
"The fourth section of the fourth article of the Constitution of the United
States shall guarantee to every state in the Union a republican form of
government, and shall protect each of them against invasion; and on
the application of the Legislature or of the Executive (when the
legislature cannot be convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide
what government is established one in a state. For, as the United State
guarantee to each state a republican government, Congress must
necessarily decide what government is established in the state before
it can determine whether it is republican or not. And when the senators
and representatives of a state are admitted into the Councils of the
Union, the authority of the government under which they were
appointed, as well as its republican character, is recognized by the
proper constitutional authority. And its decision is binding on every
other department of the government, and could not be questioned in
a judicial tribunal. It is true that the contest in this case did not last long
enough to bring the matter to this issue; and as no senators or
representatives were elected under the authority of the government of
which Mr. Dorr was the head, Congress was not called upon to decide
the controversy. Yet the right to decide is placed there and not in the
courts."
xxx xxx xxx
... We do not stop to cite other cases which indirectly or incidentally
refer to the subject, but conclude by directing attention to the
statement by the court, speaking through Mr. Chief Justice Fuller, in
Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep.
890, 1009, where, after disposing of a contention made concerning
the 14th Amendment, and coming to consider a proposition which was
necessary to be decided concerning the nature and effect of the
guaranty of S 4 of article 4, it was said (p. 578):
"But it is said that the 14th Amendment must be read with S 4 of article
4, of the Constitution, providing that the United States shall guarantee
to every state in this Union a republican form of government, and shall
protect each of them against invasion; and on application of the
legislature, or the Executive (when the legislature cannot be
convened), against domestic violence."
xxx xxx xxx
"It was long ago settled that the enforcement of this guaranty belonged
to the political department. Luther v. Borden, 7 How. 1, 12 L.ed. 581.
In that case it was held that the question, which of the two opposing
governments of Rhode Island, namely, the charter government or the
government established by a voluntary convention, was the legitimate
one, was a question for the determination of the political department;
and when that department had decided, the courts were bound to take
notice of the decision and follow it."
xxx xxx xxx
As the issues presented, in their very essence, are, and have long
since by this Court been, definitely determined to be political and
governmental, and embraced within the scope of the scope of the
powers conferred upon Congress, and not, therefore within the reach
of judicial power, it follows that the case presented is not within our
jurisdiction, and the writ of error must therefore be, and it is, dismissed
for want of jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).
Even a constitutional amendment that is only promulgated by the
Constitutional Convention without authority therefor and without submitting the
same to the people for ratification, becomes valid, when recognized, accepted
and acted upon the by Chief of State and other government functionaries, as
well as by the people. In the 1903 case of Taylor vs. Commonwealth (44 SE
754-755), the Court ruled:
The sole ground urged in support of the contention that Constitution
proclaimed in 1902 is invalid is that it was ordained and promulgated
by the convention without being submitted for ratification or rejection
by the people of the commonwealth.
The Constitution of 1902 was ordained and proclaimed by convention
duly called by direct vote of the people of the state to revise and
 amend the Constitution of 1869. The result of the work that the
convention has been recognized, accepted, and acted upon as the
only valid Constitution of the state by the Governor in swearing fidelity
to it and proclaiming it, as directed thereby; by the Legislature in its
formal official act adopting a joint resolution, July 15, 1902,
recognizing the Constitution ordained by the convention which
assembled in the city of Richmond on the 12th day of June 1901, as
the Constitution of Virginia; by the individual oaths of members to
support it, and by its having been engaged for nearly a year in
legislating under it and putting its provisions into operation but the
judiciary in taking the oath prescribed thereby to support and by
enforcing its provisions; and by the people in their primary capacity by
peacefully accepting it and acquiescing in it, registering as voters
under it to the extent of thousands through the state, and by voting,
under its provisions, at a general election for their representatives in
the Congress of the United States. (p. 755).
The Court in the Taylor case above-mentioned further said:
While constitutional procedure for adoption or proposal to amend the
constitution must be duly followed, without omitting any requisite
steps, courts should uphold amendment, unless satisfied that the
Constitution was violated in submitting the proposal. ... Substance
more than form must be regarded in considering whether the complete
constitutional system for submitting the proposal to amend the
constitution was observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
There may be technical error in the manner in which a proposed
amendment is adopted, or in its advertisement, yet, if followed,
unobjected to, by approval of the electors, it becomes part of the
Constitution. Legal complaints to the submission may be made prior
to taking the vote, but, if once sanctioned, the amendment is embodied
therein, and cannot be attacked, either directly or collaterally, because
of any mistake antecedent thereto. Even though it be submitted at an
improper time, it is effective for all purposes when accepted by the
majority. Armstrong v. King, 281 Pa. 207, 126 A. 263. (130 A 409).
Even if the act of the Constitutional Convention is beyond its authority, such
act becomes valid upon ratification or adoption or acquiescence by the people.
Thus, in the 1905 case of Ex parte Birmingham and A.R. Company (42 SO pp.
118 & 123), the Alabama Supreme Court upheld this principle and stated that:
"The authorities are almost uniform that this ratification of an unauthorized act
by the people (and the people are the principal in this instance) renders the
act valid and binding."
It has likewise been held that it is not necessary that voters ratifying the new
Constitution are registered in the book of voters; it is enough that they are
electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45
LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375),
the Supreme Court of Wisconsin ruled that "irregularity in the procedure for the
submission of the proposed constitutional amendment will not defeat the
ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769),
the Alabama Supreme Court pronounced that "the irregularity in failing to
publish the proposed constitutional amendment once in each of the 4 calendar
weeks next preceding the calendar week in which the election was held or
once in each of the 7-day periods immediately preceding the day of the
election as required by the Constitution, did not invalidate the amendment
which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme Court
in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they admitted
irregularities or illegalities committed in the procedure for submission of the
proposed constitutional amendment to the people for ratification consisted of:
"(a) the alleged failure of the county election commissioners of the several
counties to provide a sufficient number of ballot boxes 'secured by good and
substantial locks,' as provided by Section 3249, Code of 1942, Rec., to be
used in the holding of the special election on the constitutional amendment,
and (b) the alleged failure of the State Election Commissioners to comply with
the requirements of Code Sections 3204 and 3205 in the appointment of
election commissioners in each of the 82 counties. The irregularities
complained of, even if proved, were not such irregularities would have
invalidated the election." (Emphasis supplied; see also Sylvester vs. Tindall, 8
SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the Constitutional
Convention and during the deliberations of the Constitutional Convention from
June 1, 1971 until martial law was proclaimed on Sept. 21, 1972, the salient
reforms contained in the 1973 Constitution which have long been desired by
the people, had been thoroughly discussed in the various committees of the
Constitutional Convention, on the floor of the Convention itself, in civic forums
and in all the media of information. Many of the decrees promulgated by the
Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the
reforms and had been ratified in Sec. 3(2) of Article XVII of the 1973
Constitution.
Petitioners cannot safely state that during martial law the majority of the people
cannot freely vote for these reforms and are not complying with the
implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had free
elections in 1951 and 1971 when the opposition won six out of eight senatorial
seats despite the suspension of the privileges of the writ of habeas corpus (see
Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which suspension
implies constraint on individual freedom as the proclamation of martial law. In
both situations, there is no total blackout of human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as
well as officials of the Legislative and Executive branches of the government
elected and/or appointed under the 1935 Constitution have either recognized
or are now functioning under the 1973 Constitution, aside from the fact of its
ratification by the sovereign people through the Citizens Assemblies. Ninety-
five (95) of a total of one hundred ten (110) members of the House of
Representatives including the Speaker and the Speaker Pro Tempore as well
as about eleven (11) Congressmen who belong to the Liberal Party and fifteen
(15) of a total of twenty-four (24) senators including Liberal senators Edgar U.
Ilarde and John Osmea opted to serve in the Interim Assembly, according to
the certification of the Commission on Elections dated February 19, 1973
(Annex Rejoinder-3 to Consolidated Rejoinder of petitioners in L-36165). Only
the five (5) petitioners in L-36165 close their eyes to a fait accompli. All the
other functionaries recognize the new government and are performing their
duties and exercising their powers under the 1973 Constitution, including the
lower courts. The civil courts, military tribunals and quasi-judicial bodies
created by presidential decrees have decided some criminal, civil and
administrative cases pursuant to such decrees. The foreign ambassadors who
were accredited to the Republic of the Philippines before martial law continue
to serve as such in our country; while two new ambassadors have been
accepted by the Philippines after the ratification of the 1973 Constitution on
January 17, 1973. Copies of the 1973 Constitution had been furnished the
United Nations Organization and practically all the other countries with which
the Philippines has diplomatic relations. No adverse reaction from the United
Nations or from the foreign states has been manifested. On the contrary, our
permanent delegate to the United Nations Organization and our diplomatic
representatives abroad appointed before martial law continue to remain in their
posts and are performing their functions as such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions of the
1973 Constitution by requiring all election registrars to register 18-year olds
and above whether literates or not, who are qualified electors under the 1973
Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of respondents
Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973 Constitution
and the government which is enforcing the same for over 10 weeks now With
the petitioners herein, secessionists, rebels and subversives as the only
possible exceptions, the rest of the citizenry are complying with decrees,
orders and circulars issued by the incumbent President implementing the 1973
Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW
522:
If a set of men, not selected by the people according to the forms of
law, were to formulate an instrument and declare it the constitution, it
would undoubtedly be the duty of the courts declare its work a nullity.
This would be revolution, and this the courts of the existing
government must resist until they are overturned by power, and a new
government established. The convention, however, was the offspring
of law. The instrument which we are asked to declare invalid as a
constitution has been made and promulgated according to the forms
of law. It is a matter of current history that both the executive and
legislative branches of the government have recognized its validity as
a constitution, and are now daily doing so. Is the question, therefore,
one of a judicial character? It is our undoubted duty, if a statute be
unconstitutional to so declare it; also, if a provision of the state
constitution be in conflict with the federal constitution, to hold the
former invalid. But this is a very different case. It may be said,
however, that, for every violation of or non-compliance with the law,
there should be a remedy in the courts. This is not, however, always
the case. For instance, the power of a court as to the acts of the other
departments of the government is not an absolute one, but merely to
determine whether they have kept within constitutional limits, it is a
duty rather than a power, The judiciary cannot compel a co-equal
department to perform a duty. It is responsible to the people; but if it
does act, then, when the question is properly presented, it is the duty
of the court to say whether it has conformed to the organic law. While
the judiciary should protect the rights of the people with great care and
jealousy, because this is its duty, and also because, in times of great
popular excitement, it is usually their last resort, yet it should at the
same time be careful to overstep the proper bounds of its power, as
being perhaps equally dangerous; and especially where such
momentous results might follow as would be likely in this instance, if
the power of the judiciary permitted, and its duty required, the
overthrow of the work of the convention.
After the American Revolution the state of Rhode Island retained its
colonial character as its constitution, and no law existed providing for
the making of a new one. In 1841 public meetings were held, resulting
in the election of a convention to form a new one, to be submitted
to a popular vote. The convention framed one, submitted it to a vote,
and declared it adopted. Elections were held for state officers, who
proceeded to organize a new government. The charter government
did not acquiesce in these proceedings, and finally declared the state
under martial law. It called another convention, which in 1843 formed
a new constitution. Whether the charter government, or the one
established by the voluntary convention, was the legitimate one, was
uniformly held by the courts of the state not to be a judicial, but a
political question; and the political department having recognized the
one, it was held to be the duty of the judiciary to follow its decision.
The supreme court of the United States, in Luther v. Borden, 7 How.
1, while not expressly deciding the principle, as it held the federal
court, yet in the argument approves it, and in substance says that
where the political department has decided such a matter the judiciary
should abide by it.
Let us illustrate the difficulty of a court deciding the question: Suppose
this court were to hold that the convention, when it reassembled, had
no power to make any material amendment, and that such as were
made are void by reason of the people having theretofore approved
the instrument. Then, next, this court must determine what
amendments were material; and we find the court, in effect, making a
constitution. This would be arrogating sovereignty to itself. Perhaps
the members of the court might differ as to what amendments are
material, and the result would be confusion and anarchy. One judge
might say that all the amendments, material and immaterial, were void;
another, that the convention had then the implied power to correct
palpable errors, and then the court might differ as to what
amendments are material. If the instrument as ratified by the people
could not be corrected or altered at all, or if the court must determine
what changes were material, then the instrument, as passed upon by
the people or as fixed by the court would be lacking a promulgation by
the convention; and, if this be essential, then the question would arise,
what constitution are we now living under, and what is the organic law
of the state? A suggestion of these matters shows what endless
confusion and harm to the state might and likely would arise. If,
through error of opinion, the convention exceeded its power, and the
people are dissatisfied, they have ample remedy, without the judiciary
being asked to overstep the proper limits of its power. The instrument
provides for amendment and change. If a wrong has been done, it can,
in the proper way in which it should be remedied, is by the people
acting as a body politic. It is not a question of whether merely an
amendment to a constitution, made without calling a convention, has
been adopted, as required by that constitution. If it provides how it is
to be done, then, unless the manner be followed, the judiciary, as the
interpreter of that constitution, will declare the amendment
invalid. Koehler v. Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W.
Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep. 835. But it is a case
where a new constitution has been formed and promulgated according
to the forms of law. Great interests have already arisen under it;
important rights exist by virtue of it; persons have been convicted of
the highest crime known to the law, according to its provisions; the
political power of the government has in many ways recognized it; and,
under such circumstances, it is our duty to treat and regard it as a valid
constitution, and now the organic law of our commonwealth.
We need not consider the validity of the amendments made after the
convention reassembled. If the making of them was in excess of its
powers, yet, as the entire instrument has been recognized as valid in
the manner suggested, it would be equally an abuse of power by the
judiciary and violative of the rights of the people, who can and
properly should remedy the matter, if not to their liking, if it were to
declare the instrument of a portion invalid, and bring confusion and
anarchy upon the state. (emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102 and
consequently of the adoption of the 1973 Constitution it would be exercising a
veto power on the act of the sovereign people, of whom this Court is merely
an agent, which to say the least, would be anomalous. This Court cannot
dictate to our principal, the sovereign people, as to how the approval of the
new Constitution should be manifested or expressed. The sovereign people
have spoken and we must abide by their decision, regardless of our notion as
to what is the proper method of giving assent to the new Charter. In this
respect, WE cannot presume to know better than the incumbent Chief
Executive, who, unlike the members of this Court, only last January 8, 1973,
We affirmed in Osmea vs. Marcos(Pres. Election Contest No. 3, Jan. 8,
1973), was re-elected by the vote of over 5 million electors in 1969 for another
term of four years until noon of December 30, 1973 under the 1935
Constitution. This Court, not having a similar mandate by direct fiat from the
sovereign people, to execute the law and administer the affairs of government,
must restrain its enthusiasm to sally forth into the domain of political action
expressly and exclusively reserved by the sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their
hands to a specific procedure for popular ratification of their organic law. That
would be incompatible with their sovereign character of which We are
reminded by Section 1, of Article II of both the 1935 and the 1973
Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people
cannot violate the procedure for ratification which they themselves define in
their Constitution, cannot apply to a unitary state like the Republic of the
Philippines. His opinion expressed in 1868 may apply to a Federal State like
the United States, in order to secure and preserve the existence of the Federal
Republic of the United States against any radical innovation initiated by the
citizens of the fifty (50) different states of the American Union, which states
may be jealous of the powers of the Federal government presently granted by
the American Constitution. This dangerous possibility does not obtain in the
case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he
wrote his opus "Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969
ed. pp. 445 446). It is possible that, were he live today, in a milieu vastly
different from 1868 to 1898, he might have altered his views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by the
President in Proclamation No. 1102 that the people through their Citizens'
Assemblies had overwhelmingly approved the new Constitution due regard to
a separate, coordinate and co-equal branch of the government demands
adherence to the presumption of correctness of the President's declaration.
Such presumption is accorded under the law and jurisprudence to officials in
the lower levels of the Executive branch, there is no over-riding reason to deny
the same to the Chief of State as head of the Executive Branch. WE cannot
reverse the rule on presumptions, without being presumptuous, in the face of
the certifications by the Office the Secretary of the Department of Local
Government and Community Development. (Annexes 1, to 1-E, Annexes 2 to
2-O to the compliance with manifestation filed by the Solicitor General on
behalf of the respondents public officers dated March 7, 1973). There is
nothing in the records that contradicts, much less overthrow the results of the
referendum as certified. Much less are We justified in reversing the burden of
proof by shifting it from the petitioners to the respondents. Under the rules
on pleadings, the petitioners have the duty to demonstrate by clear and
convincing evidence their claim that the people did not ratify through the
Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And
have failed to do so.
No member of this Tribunal is justified in resolving the issues posed by the
cases at bar on the basis of reports relayed to him from private sources which
could be biased and hearsay, aside from the fact that such reports are not
contained in the record. Proclamation No. 1102 is not just an ordinary act of
the Chief Executive. It is a well-nigh solemn declaration which announces the
highest act of the sovereign people their imprimatur to the basic Charter
that shall govern their lives hereafter may be for decades, if not for
generations.
Petitioners decry that even 15-year olds, ex convicts and illiterates were
allowed to vote in the Citizens' Assemblies, despite their admission that the
term "Filipino people" in the preamble as well as "people" in Sections 1 and 5
of Article II of the 1935 Constitution and in Section 1(3) of Article III of the Bill
of Rights includes all Filipino citizens of all ages, of both sexes, whether literate
or illiterate, whether peaceful citizens, rebels, secessionists, convicts or ex-
convicts. Without admitting that ex-convicts voted in the referendum, about
which no proof was even offered, these sectors of our citizenry, whom
petitioners seem to regard with contempt or decision and whom petitioners
would deny their sovereign right to pass upon the basic Charter that shall
govern their lives and the lives of their progenies, are entitled as much as the
educated, the law abiding, and those who are 21 years of age or above to
express their conformity or non conformity to the proposed Constitution,
because their stake under the new Charter is not any less than the stake of
the more fortunate among us. As a matter of fact, these citizens, whose
juridical personality or capacity to act is limited by age, civil interdiction or
ignorance deserve more solicitude from the State than the rest of the citizenry.
In the ultimate analysis, the inclusion of those from 15 years up to below 21
years old, the ex-convicts and the ignorant, is more democratic as it broadens
the base of democracy and therefore more faithful to the express affirmation
in Section 1 of Article II of the Declaration of Principles that "sovereignty
resides in the people and all government authority emanates from them."
Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all
ex-convicts are banned from voting. Only those who had been sentenced to at
least one year imprisonment are disenfranchised but they recover their right of
suffrage upon expiration of ten years after service of sentence (Sec. 102, 1971
Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a very
negligible number in any locality or barrio, including the localities of petitioners.
Included likewise in the delegated authority of the President, is the prerogative
to proclaim the results of the plebiscite or the voting the Citizens' Assemblies.
Petitioners deny the accuracy or correctness of Proclamation No. 1102 that
the 1973 Constitution was ratified by the overwhelming vote of close to 15
million citizens because there was no official certification to the results of the
same from the Department of Local Governments. But there was such
certification as per Annex 1 to 1-A to the Notes submitted by the Solicitor
General counsel for respondents public officers. This should suffice to dispose
of this point. Even in the absence of such certification, in much the same way
that in passing law, Congress or the legislative body is presumed to be in
possession of the facts upon which such laws are predicated (Justice
Fernando, The Power of Judicial Review, 1967 Ed., pp. 112-11 citing Lorenzo
vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford, etc.,
[1931] 282 U.S. 251), it should likewise be presumed that the President was
in possession of the fact upon which Proclamation No. 1102 was based. This
presumption is further strengthened by the fact that the Department of Local
Governments, the Department National Defense and the Philippine
Constabulary as well the Bureau of Posts are all under the President, which
offices as his alter ego, are presumptively acting for and in behalf of the
President and their acts are valid until disapproved or reprobated by the
President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil.
451). To deny the truth or the proclamation of the President as to the
overwhelming majority vote in the Citizens' Assemblies in favor of the new
Constitution, is to charge the President with falsification, which is a most
grievous accusation. Under the, rules of pleadings and evidence, the
petitioners have the burden of proof by preponderance of evidence in civil
cases and by proof beyond reasonable doubt in criminal prosecutions, where
the accused is always presumed to be innocent. Must this constitutional right
be reversed simply because the petitioner all assert the contrary? Is the rule
of law they pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is
accorded by the law and jurisprudence to acts of public officers whose
category in the official hierarchy is very much lower than that of the Chief of
State. What reason is there to withhold such a presumption in favor of the
President? Does the fact that the President belong to the party in power and
that four (4) of the five (5) senators who are petitioners in L-36165 belong to
the opposition party, justify a discrimination against the President in matters of
this nature? Unsupported as their word is by any credible and competent
evidence under the rules of evidence, must the word of the petitioners prevail
over that of the Chief Executive, because they happen to be former senators
and delegates to the Constitutional Convention? More than any of the
petitioners herein in all these cases, the incumbent President realizes that he
risks the wrath of his people being visited upon him and the adverse or hostile
verdict of history; because of the restrictions on the civil liberties of his people,
inevitable concomitants of martial law, which necessarily entail some degree
of sacrifice on the part of the citizenry. Until the contrary is established or
demonstrated, herein petitioners should grant that the Chief Executive is
motivated by what is good for the security and stability of the country, for the
progress and happiness of the people. All the petitioners herein cannot stand
on the proposition that the rights under the 1935 Constitution are absolute and
invulnerable to limitations that may be needed for the purpose of bringing
about the reforms for which the petitioners pretend to be clamoring for and in
behalf of the people. The five (5) petitioners in L-36165 and four (4) of the
seven (7) petitioners in L-36164 were all participants in the political drama of
this country since 1946. They are witness to the frustrations of well-meaning
Presidents who wanted to effect the reforms, especially for the benefit of the
landless and the laboring class how politics and political bargaining had
stymied the effectuation of such reforms thru legislation. The eight (8)
petitioners in L-36164 and L-36165 may not have participated in the
systematic blocking of the desired reforms in Congress or outside of it; but the
question may be asked as to what exactly they did to support such reforms.
For the last seven (7) decades since the turn of the century, for the last thirty-
five (35) years since the establishment of the Commonwealth government in
1935 and for the last twenty seven (27) years since the inauguration of the
Republic on July 4, 1946, no tangible substantial reform had been effected,
funded and seriously implemented, despite the violent uprisings in the thirties,
and from 1946 to 1952, and the violent demonstrations of recent memory.
Congress and the oligarchs acted like ostriches, "burying their heads in
timeless sand. "Now the hopes for the long-awaited reforms to be within a year
or to are brighter. It would seem therefore to the duty of everyone including
herein petitioners to give the present leadership the opportunity to institute and
carry out the needed reforms as provided for in the new or 1973 Constitution
and thru the means prescribed in that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing
by implication a limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper sphere
and encroached upon the province exclusively reserved to and by the
sovereign people. This Court did not heed to the principle that the courts are
not the fountain of all remedies for all wrongs. WE cannot presume that we
alone can speak with wisdom as against the judgment of the people on the
basic instrument which affects their very lives. WE cannot determine what is
good for the people or ought to be their fundamental law. WE can only exercise
the power delegated to Us by the sovereign people, to apply and interpret the
Constitution and the laws for the benefit of the people, not against them nor to
prejudice them. WE cannot perform an act inimical to the interest of Our
principal, who at any time may directly exercise their sovereign power ratifying
a new Constitution in the manner convenient to them.
It is pertinent to ask whether the present Supreme Court can function under
the 1935 Constitution without being a part of the government established
pursuant thereto. Unlike in the Borden case, supra, where there was at least
another government claiming to be the legitimate organ of the state of Rhode
Island (although only on paper as it had no established organ except Dorr who
represented himself to be its head; in the cases at bar there is no other
government distinct from and maintaining a position against the existing
government headed by the incumbent Chief Executive. (See Taylor vs.
Commonwealth, supra). There is not even a rebel government duly organized
as such even only for domestic purposes, let alone a rebel government
engaged in international negotiations. As heretofore stated, both the executive
branch and the legislative branch established under the 1935 Constitution had
been supplanted by the government functioning under the 1973 Constitution
as of January 17, 1973. The vice president elected under the 1935 Constitution
does not asset any claim to the leadership of the Republic of the Philippines.
Can this Supreme Court legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his
appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of the
American Bar," because during the American civil war he apparently had the
courage to nullify the proclamation of President Lincoln suspending the
privileges of the writ of habeas corpus in Ex parte Merryman (Federal Case
No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney?
The Editorial Board of Vol. 21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779,
1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in Calvert
County, Maryland, of parents who were landed aristocrats as well as slave
owners. Inheriting the traditional conservatism of his parents who belonged to
the landed aristocracy, Taney became a lawyer in 1799, practiced law and was
later appointed Attorney General of Maryland. He also was a member of the
Maryland state legislature for several terms. He was a leader of the Federalist
Party, which disintegrated after the war of 1812, compelling him to join the
Democratic Party of Andrew Jackson, also a slave owner and landed
aristocrat, who later appointed him first as Attorney General of the United
States, then Secretary of the Treasury and in 1836 Chief Justice of the United
States Supreme Court to succeed Chief Justice John Marshall, in which
position he continued for 28 years until he died on October 21, 1864. His death
"went largely unnoticed and unregretted." Because he himself was a slave
owner and a landed aristocrat, Chief Justice Taney sympathized with the
Southern States and, even while Chief Justice, hoped that the Southern States
would be allowed to secede peacefully from the Union. That he had no
sympathy for the Negroes was revealed by his decision in Dred Scott vs.
Sandford (19 How. 398 [1857]) where he pronounced that the American Negro
is not entitled to the rights of an American citizen and that his status as a slave
is determined by his returning to a slave state. One can therefore discern his
hostility towards President Lincoln when he decided Ex parte Merryman, which
animosity to say the least does no befit a judicial mind. Such a man could
hardly be spoken of as a hero of the American Bar, least of all of the American
nation. The choice of heroes should not be expressed indiscriminately just to
embellish one's rhetoric.
Distinguished counsel in L-36165 appears to have committed another
historical error, which may be due to his rhetorical in the Encyclopedia
Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary,
Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-
733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savior of
Verdun"; because he held Verdun against the 1916 offensive of the German
army at the cost of 350,000 of his French soldiers, who were then demoralized
and plotting mutiny. Certainly, the surviving members of the family of Marshal
Petain would not relish the error. And neither would the members of the clan
of Marshal Foch acknowledge the undeserved accolade, although Marshal
Foch has a distinct place in history on his own merits. The foregoing
clarification is offered in the interest of true scholarship and historical accuracy,
so that the historians, researchers and students may not be led astray or be
confused by esteemed counsel's eloquence and mastery of the spoken and
written word as well as by his eminence as law professor, author of law books,
political leader, and member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did
not address likewise his challenge to the five (5) senators who are petitioners
in L-36165 to also act as "heroes and idealists," to defy the President by
holding sessions by themselves alone in a hotel or in their houses if they can
muster a quorum or by causing the arrest of other senators to secure a quorum
and thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco,
et al. [1949] 83 Phil. 17), if they believe most vehemently in the justice and
correctness of their position that the 1973 Constitution has not been validly
ratified, adopted or acquiesced in by the people since January 18, 1973 until
the present. The proclaimed conviction of petitioners in L-36165 on this issue
would have a ring of credibility, if they proceeded first to hold a rump session
outside the legislative building; because it is not unreasonable to demand or
to exact that he who exhorts others to be brave must first demonstrate his own
courage. Surely, they will not affirm that the mere filing of their petition in L-
36165 already made them "heroes and idealists." The challenge likewise
seems to insinuate that the members of this Court who disagree with
petitioners' views are materialistic cowards or mercenary fence-sitters. The
Court need not be reminded of its solemn duty and how to perform it. WE
refuse to believe that petitioners and their learned as well as illustrious
counsels, scholars and liberal thinkers that they are, do not recognize the
sincerity of those who entertain opinions that clash with their own. Such an
attitude does not sit well with the dictum that "We can differ without being
difficult; we can disagree without being disagreeable," which distinguished
counsel in L-36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other points
raised by petitioners, which We do not find now necessary to deal with in view
of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE
CASES SHOULD BE DISMISSED.
MAKASIAR, J., concurring:
Pursuant to Our reservation, We now discuss the other issues raised by the
petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION
OR ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY
OF 1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the
proposition that the question as to whether a constitutional amendment or the
revised or new Constitution has been validly submitted to the people for
ratification in accordance with the procedure prescribed by the existing
Constitution, is a justiciable question,accord all presumption of validity to the
constitutional amendment or the revised or new Constitution after the
government officials or the people have adopted or ratified or acquiesced in
the new Constitution or amendment, although there was an illegal or irregular
or no submission at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935
[1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369,
74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78 Neb. 379, 110
NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St. Rep. 1, 68 NE
574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga.
780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs.
Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed
that the constitutional amendment or the new Constitution should not be
condemned "unless our judgment its nullity is manifest beyond reasonable
doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645;
and the 1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the
presumption of constitutionality must persist in the absence of factual
foundation of record to overthrow such presumption (Ermita-Malate Hotel, etc.
vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION CO-EQUAL WITH AND
INDEPENDENT OF CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well as
independent of, the three grand departments of the Government, namely, the
legislative, the executive and the judicial. As a fourth separate and distinct
branch, to emphasize its independence, the Convention cannot be dictated to
by either of the other three departments as to the content as well as the form
of the Charter that it proposes. It enjoys the same immunity from interference
or supervision by any of the aforesaid branches of the Government in its
proceedings, including the printing of its own journals (Taada and Fernando,
Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel,
Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in that
independence, for the purpose of maintaining the same unimpaired and in
order that its work will not be frustrated, the Convention has the power to fix
the date for the plebiscite and to provide funds therefor. To deny the
Convention such prerogative, would leave it at the tender mercy of both
legislative and executive branches of the Government. An unsympathetic
Congress would not be disposed to submit the proposed Constitution drafted
by the Constitutional Convention to the people for ratification, much less
appropriate the necessary funds therefor. That could have been the fate of the
1973 Constitution, because the same abolished the Senate by creating a
unicameral National Assembly to be presided by a Prime Minister who wields
both legislative and executive powers and is the actual Chief Executive, for the
President contemplated in the new Constitution exercises primarily ceremonial
prerogatives. The new Constitution likewise shortened abruptly the terms of
the members of the present Congress (whose terms end on December 31,
1973, 1975 and 1977) which provides that the new Constitution shall take
effect immediately upon its ratification (Sec. 16, Article XVII, 1973
Constitution). The fact that Section 2 of the same Article XVIII secures to the
members of Congress membership in the interim National Assembly as long
as they opt to serve therein within thirty (30) days after the ratification of the
proposed Constitution, affords them little comfort; because the convening of
the interim National Assembly depends upon the incumbent President (under
Sec. 3[1], Art. XVII, 1973 Constitution). Under the foregoing circumstances,
the members of Congress, who were elected under the 1935 Constitution,
would not be disposed to call a plebiscite and appropriate funds therefor to
enable the people to pass upon the 1973 Constitution, ratification of which
means their elimination from the political scene. They will not provide the
means for their own liquidation.
Because the Constitutional Convention, by necessary implication as it is
indispensable to its independence and effectiveness, possesses the power to
call a plebiscite and to appropriate funds for the purpose, it inescapably must
have the power to delegate the same to the President, who, in estimation of
the Convention can better determine appropriate time for such a referendum
as well as the amount necessary to effect the same; for which reason the
Convention thru Resolution No. 29 approved on November 22, 1972, which
superseded Resolution No. 5843 adopted on November 16, 1972, proposed
to the President "that a decree be issued calling a plebiscite for the ratification
of the proposed new Constitution such appropriate date as he shall determine
and providing for the necessary funds therefor, ...," after stating in "whereas"
clauses that the 1971 Constitutional Convention expected to complete its work
by the end of November, 1972 that the urgency of instituting reforms rendered
imperative the early approval of the new Constitution, and that the national and
local leaders desire that there be continuity in the immediate transition from
the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the
power to promulgate subordinate rules and regulations to implement the law,
this authority to delegate implementing rules should not be denied to the
Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a
plebiscite and to appropriate funds therefor by the Constitutional Convention
thru its Resolution No. 29, the organization of the Citizens' Assemblies for
consultation on national issues, is comprehended within the ordinance-making
power of the President under Section 63 of the Revised Administrative Code,
which expressly confers on the Chief Executive the power to promulgate
administrative acts and commands touching on the organization or mode of
operation of the government or re-arranging or re-adjusting any district,
division or part of the Philippines "or disposing of issues of general concern ...
." (Emphasis supplied). Hence, as consultative bodies representing the
localities including the barrios, their creation by the President thru Presidential
Decree No. 86 of December 31, 1972, cannot be successfully challenged.
The employment by the President of these Citizens' Assemblies for
consultation on the 1973 Constitution or on whether there was further need of
a plebiscite thereon, both issues of national concern is still within the
delegated authority reposed in him by the Constitutional Convention as
aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No.
5843, does not prescribe that the plebiscite must be conducted by the
Commission on Elections in accordance with the provisions of the 1971
Revised Election Code. If that were the intention of the Constitutional
Convention in making the delegation, it could have easily included the
necessary phrase for the purpose, some such phrase like "to call a plebiscite
to be supervised by the Commission on Elections in accordance with the
provisions of the 1971 Revised Election Code (or with existing laws)." That the
Constitutional Convention omitted such phrase, can only mean that it left to
the President the determination of the manner by which the plebiscite should
be conducted, who shall supervise the plebiscite, and who can participate in
the plebiscite. The fact that said Resolution No. 29 expressly states "that
copies of this resolution as approved in plenary session be transmitted to the
President of the Philippines and the Commission on Elections for
implementation," did not in effect designate the Commission on Elections as
supervisor of the plebiscite. The copies of said resolution that were transmitted
to the Commission on Elections at best serve merely to notify the Commission
on Elections about said resolution, but not to direct said body to supervise the
plebiscite. The calling as well as conduct of the plebiscite was left to the
discretion of the President, who, because he is in possession of all the facts
funnelled to him by his intelligence services, was in the superior position to
decide when the plebiscite shall be held, how it shall be conducted and who
shall oversee it.
It should be noted that in approving said Resolution No. 29, the Constitutional
Convention itself recognized the validity of, or validated Presidential
Proclamation No. 1081 placing the entire country under martial law by
resolving to "propose to President Ferdinand E. Marcos that a decree be
issued calling a plebiscite ... ." The use of the term "decree" is significant for
the basic orders regulating the conduct of all inhabitants are issued in that form
and nomenclature by the President as the Commander in Chief and enforcer
of martial law. Consequently, the issuance by the President of Presidential
Decree No. 73 on December 1, 1972 setting the plebiscite on January 15, 1973
and appropriating funds therefor pursuant to said Resolution No. 29, is a valid
exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule-making power
to the Chief Executive or to any of his subalterns, does not need sufficient
standards to circumscribe the exercise of the power delegated, and is beyond
the competence of this Court to nullify. But even if adequate criteria should be
required, the same are contained in the "Whereas" clauses of the
Constitutional Convention Resolution No. 29, thus:
WHEREAS, the 1971 Constitutional Convention is expected
to complete its work of drafting a proposed new Constitution
for the Republic by the end of November, 1972;
WHEREAS, in view of the urgency of instituting reforms, the
early approval of the New Constitution has become
imperative;
WHEREAS, it is the desire of the national and local leaders
that there be continuity in the immediate political transition
from the old to the New Constitution;" (Annex "1" of Answer,
Res. No. 29, Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and
the writer concurred in the Plebiscite Cases, stated:
... Once this work of drafting has been completed, it could itself direct
the submission to the people for ratification as contemplated in Article
XV of the Constitution. Here it did not do so. With Congress not being
in session, could the President, by the decree under question, call for
such a plebiscite? Under such circumstances, a negative answer
certainly could result in the work of the Convention being rendered
nugatory. The view has been repeatedly expressed in many American
state court decisions that to avoid such undesirable consequence the
task of submission becomes ministerial, with the political branches
devoid of any discretion as to the holding of an election for that
 purpose. Nor is the appropriation by him of the amount necessary to
be considered as offensive to the Constitution. If it were done by him
in his capacity as President, such an objection would indeed have
been formidable, not to say insurmountable. If the appropriation were
made in his capacity as agent of the Convention to assure that there
be submission to the people, then such an argument loses force. The
Convention itself could have done so. It is understandable why it
should be thus. If it were otherwise, then a legislative body, the
appropriating arm of the government, could conceivably make use of
such authority to compel the Convention to submit to its wishes, on
pain of being rendered financially distraught. The President then, if
performing his role as its agent, could be held as not devoid of such
competence. (pp. 2-3, concurring opinion of J. Fernando in L-35925,
etc., emphasis supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE 1973
CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to
their arguments during the hearings on December 18 and 19, 1972 on the
Plebiscite Cases. But the inclusion of questionable or ambiguous provisions
does not affect the validity of the ratification or adoption of the 1973
Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219,
1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the
American Constitution, answering the critics of the Federal Constitution, stated
that: "I never expect to see a perfect work from imperfect man. The result of
the deliberations of all collective bodies must necessarily be a compound, as
well of the errors and prejudices as of the good sense and wisdom, of the
individuals of whom they are composed. The compacts which are to embrace
thirteen distinct States in a common bond of amity and union, must necessarily
be a compromise of as many dissimilar interests and inclinations. How can
perfection spring from such materials?" (The Federalist, Modern Library Ed.,
pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the ground that it contains
provisions which are ultra vires or beyond the power of the Constitutional
Convention to propose.
This objection relates to the wisdom of changing the form of government from
Presidential to Parliamentary and including such provisions as Section 3 of
Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in
the 1973 Constitution.
Article IV
Sec. 3. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall not
be violated, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized
by law, after examination under oath or affirmation of the
complainant and the witnesses may produce, and particularly
describing the place to be searched, and the persons or things
to be seized.
Article XIV
Sec. 15. Any provision of paragraph one, Section fourteen,
Article Eight and of this Article notwithstanding, the Prime
Minister may enter into international treaties or agreements as
the national welfare and interest may require." (Without the
consent of the National Assembly.)
Article XVII
Sec. 3(2) 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 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.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and contracts
entered into by the Government, or any subdivision, agency,
or instrumentality thereof, including government-owned or
controlled corporations, are hereby recognized as legal, valid
and binding. When the national interest so requires, the
incumbent President of the Philippines or the interim Prime
Minister may review all contracts, concessions, permits, or
 other forms of privileges for the exploration, development,
exploitation, or utilization of natural resources entered into,
granted, issued or acquired before the ratification of this
Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-
35953, L-35961, L-35965, & L-35979), Chief Justice Roberto Concepcion,
concurred in by Justices Fernando, Barredo, Antonio and the writer, overruled
this objection, thus:
... Regardless of the wisdom and moral aspects of the contested
provisions of the proposed Constitution, it is my considered view that
the Convention was legally deemed fit to propose save perhaps
what is or may be insistent with what is now known, particularly in
international law, as Jus Cogens not only because the Convention
exercised sovereign powers delegated thereto by the people
although insofar only as the determination of the proposals to be made
and formulated by said body is concerned but also, because said
proposals cannot be valid as part of our Fundamental Law unless and
until "approved by the majority of the votes cast at an election which"
said proposals "are submitted to the people for their ratification," as
provided in Section 1 of Article XV of the 1935 Constitution. (Pp. 17-
18, Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20,
1970, 35 SCRA 367) that the Constitutional Convention has the authority to
"entirely overhaul the present Constitution and propose an entirely new
Constitution based on an ideology foreign to the democratic system ...;
because the same will be submitted to the people for ratification. Once ratified
by the sovereign people, there can be no debate about the validity of the new
Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the
foregoing pronouncement in the Del Rosario case, supra, and added: "... it
seems to me a sufficient answer that once convened, the area open for
deliberation to a constitutional convention ..., is practically limitless" (citing Cf.
Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P 734,
66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895];
State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE
479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31
[1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs.
Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of Pontiac,
247 NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases,
expressed the view "that when the people elected the delegates to the
Convention and when the delegates themselves were campaigning, such
limitation of the scope of their function and objective was not in their minds."
V
1973 CONSTITUTION DULY ADOPTED AND PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned on
November 30, 1972 without officially promulgating the said Constitution in
Filipino as required by Sections 3(1) of Article XV on General Provisions of the
1973 Constitution. This claim is without merit because their Annex "M" is the
Filipino version of the 1973 Constitution, like the English version, contains the
certification by President Diosdado Macapagal of the Constitutional
Convention, duly attested by its Secretary, that the proposed Constitution,
approved on second reading on the 27th day of November, 1972 and on third
reading in the Convention's 291st plenary session on November 29, 1972 and
accordingly signed on November 1972 by the delegates whose signatures are
thereunder affixed. It should be recalled that Constitutional Convention
President Diosdado Macapagal was, as President of the Republic 1962 to
1965, then the titular head of the Liberal Party to which four (4) of the
petitioners in L-36165 including their counsel, former Senator Jovito Salonga,
belong. Are they repudiating and disowning their former party leader and
benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT PRESCRIBE ANY
PROCEDURE FOR RATIFICATION OF 1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply 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 ratification."
But petitioners construe the aforesaid provision to read: "Such amendments
shall be valid as part of this Constitution when approved by a majority of the
votes cast at an election called by Congress at which the amendments are
submitted for ratification by the qualified electors defined in Article V hereof,
supervised by the Commission on Elections in accordance with the existing
election law and after such amendments shall have been published in all the
newspapers of general circulation for at least four months prior to such
election."
This position certainly imposes limitation on the sovereign people, who have
the sole power of ratification, which imposition by the Court is never justified
(Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and
tortured construction Article XV of the 1935 Constitution. This is a clear case
of usurpation of sovereign power they do not possess through some kind of
escamotage. This Court should not commit such a grave error in the guise of
judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due to
absence of substantial compliance with the procedure prescribed by the
Constitution and/or the law, nullifies the proposed amendment or the new
Constitution, the procedure prescribed by the state Constitution is so detailed
that it specifies that the submission should be at a general or special election,
or at the election for members of the State legislature only or of all state officials
only or of local officials only, or of both state and local officials; fixes the date
of the election or plebiscite limits the submission to only electors or qualified
electors; prescribes the publication of the proposed amendment or a new
Constitution for a specific period prior to the election or plebiscite; and
designates the officer to conduct the plebiscite, to canvass and to certify the
results, including the form of the ballot which should so state the substance of
the proposed amendments to enable the voter to vote on each amendment
separately or authorizes expressly the Constitutional Convention or the
legislature to determine the procedure or certain details thereof. See the State
Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado
[1976]; Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970];
Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana
[1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota
[1857]; Mississippi [1890]; and Missouri [1945]).
As typical examples: Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may be
proposed to this Constitution by the legislature in the manner
following: The proposed amendments shall be read in the
house in which they originate on three several days, and, if
upon the third reading, three-fifths of all the members elected
to that house shall vote in favor thereof, the proposed
amendments shall be sent to the other house, in which they
shall likewise be read on three several days, and if upon the
third reading, three-fifths of all the members elected that
house shall vote in favor of the proposed amendments,
thelegislature shall order an election by the qualified electors
of the state upon such proposed amendments, to be held
either at the general election next succeeding the session of
the legislature at which the amendments are proposed or
upon another day appointed by the legislature, not less than
three months after the final adjournment of the session of the
legislature at which the amendments were proposed. Notice
of such election, together with the proposed amendments,
shall be given by proclamation of the governor, which shall be
published in every county in such manner as the legislature
shall direct, for at least eight successive weeks next preceding
the day appointed for such election. On the day so appointed
an election shall be held for the vote of the qualified electors
of the state upon the proposed amendments. If such election
be held on the day of the general election, the officers of such
general election shall open a poll for the vote of the qualified
electors upon the proposed amendments; if it be held on a
day other than that of a general election, officers for such
election shall be appointed; and the election shall be held in
all things in accordance with the law governing general
elections. In all elections upon such proposed
amendments, the votes cast thereat shall be canvassed,
tabulated, and returns thereof be made to the secretary of
state, and counted, in the same manner as in elections for
representatives to the legislature; and if it shall thereupon
appear that a majority of the qualified electors who voted at
such election upon the proposed amendments voted in favor
of the same, such amendments shall be valid to all intents and
purposes as parts of this Constitution. The result of such
election shall be made known by proclamation of the
governor. Representation in the legislature shall be based
upon population, and such basis of representation shall not
be changed by constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon the ballots
used at all elections provided for in section 284 of this
Constitution, the substance or subject matter of each
proposed amendment shall be so printed that the nature
thereof shall be clearly indicated. Following each proposed
amendment on the ballot shall be printed the word "Yes" and
immediately under that shall be printed the word "No". The
choice of the elector shall be indicated by a cross mark made
by him or under his direction, opposite the word expressing
his desire, and no amendment shall be adopted unless it
receives the affirmative vote of a majority of all the qualified
electors who vote at such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either branch of the
General Assembly at a regular session thereof may propose
amendments to this Constitution, and, if the same be agreed
to by a majority of all the members, elected to each house,
such proposed amendments shall be entered on the journal
with the yeas and nays, and published in at least one
newspaper in each county, where a newspaper is published,
for six months immediately preceding the next general
election for Senators and Representatives, at which time the
same shall be submitted to the electors of the State for
approval or rejection, and if a majority of the electors voting at
such election adopt such amendments, the same shall
become a part of this Constitution; but no more than three
amendments shall be proposed or submitted at the same
time. They shall be so submitted as to enable the electors to
vote on each amendment separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications; elections.
Propositions for the amendment of this constitution may be
made by either branch of the legislature; and if two thirds of
all the members elected to each house shall concur therein,
such proposed amendments, together with the yeas and
nays, shall be entered on the journal; and the secretary of
state shall cause the same to be published in at least one
newspaper in each county of the state where a newspaper is
published, for three months preceding the next election for
representatives, at which time, the same shall be submitted to
the electors, for their approval or rejection; and if a majority of
the electors voting on said amendments, at said election, shall
adopt the amendments, the same shall become a part of the
constitution. When more than one amendment shall be
submitted at the same time, they shall be so submitted as to
enable the electors to vote on each amendments separately;
and not more than three propositions to amend shall be
submitted at the same election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly; publication; submission
to voters; governor's proclamation. The General Assembly
may propose Amendments to this Constitution; provided that
each Amendment shall be embraced in a separate bill,
embodying the Article or Section, as the same will stand when
amended and passed by three fifths of all the members
elected to each of the two Houses, by yeas and nays, to be
entered on the Journals with the proposed Amendment. The
bill or bills proposing amendment or amendments shall be
published by order of the Governor, in at least two
newspapers, in each County, where so many may be
published, and where not more than one may be published,
then in the newspaper, and in three newspapers published in
the City of Baltimore, once a week for four weeks immediately
preceding the next ensuing general election, at which the
proposed amendment or amendments shall be submitted, in
a form to be prescribed by the General Assembly, to the
qualified voters of the State for adoption or rejection. The
votes cast for and against said proposed amendment or
amendments, severally, shall be returned to the Governor, in
the manner prescribed in other cases, and if it shall appear to
the Governor that a majority of the votes cast at said election
on said amendment or amendments, severally, were cast in
favor thereof, the Governor shall, by his proclamation, declare
the said amendment or amendments having received said
majority of votes, to have been adopted by the people of
Maryland as part of the Constitution thereof, and henceforth
said amendment or amendments shall be part of the said
Constitution. When two or more amendments shall be
submitted in the manner aforesaid, to the voters of this State
at the same election, they shall be so submitted as that each
amendment shall be voted on separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by general assembly
or by the initiative. All amendments proposed by the general assembly
or by the initiative shall be submitted to the electors for their approval
or rejection by official ballot title as may be provided by law, on a
separate ballot without party designation, at the next general election,
or at a special election called by the governor prior thereto, at which
he may submit any of the amendments. No such proposed
 amendment shall contain more than one amended and revised article
of this constitution, or one new article which shall not contain more
than one subject and matters properly connected therewith. If
possible, each proposed amendment shall be published once a week
for two consecutive weeks in two newspapers of different political faith
in each county, the last publication to be not more than thirty nor less
than fifteen days next preceding the election. If there be but one
newspaper in any county, publication of four consecutive weeks shall
be made. If a majority of the votes cast thereon is in favor of any
amendment, the same shall take effect at the end of thirty days after
the election. More than one amendment at the same election shall be
so submitted as to enable the electors to vote on each amendment
separately.
Article XV of the 1935 Constitution does not require a specific procedure, much
less a detailed procedure for submission or ratification. As heretofore stated,
it does not specify what kind of election at which the new Constitution shall be
submitted; nor does it designate the Commission on Elections to supervise the
plebiscite. Neither does it limit the ratification to the qualified electors as
defined in Article V of the 1935 Constitution. Much less does it require the
publication of the proposed Constitution for any specific period before the
plebiscite nor does it even insinuate that the plebiscite should be supervised
in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure for submission
of the proposed Constitution to the people for ratification. It does not make any
reference to the Commission on Elections as the body that shall supervise the
plebiscite. And Article XV could not make any reference to the Commission on
Elections because the original 1935 Constitution as ratified on May 14, 1935
by the people did not contain Article X on the Commission on Elections, which
article was included therein pursuant to an amendment by that National
Assembly proposed only about five (5) years later on April 11, 1940, ratified
by the people on June 18, 1940 as approved by the President of the United
States on December 1940 (see Sumulong vs. Commission, 70 Phil. 703, 713,
715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the
original framers of the 1935 Constitution as ratified May 14, 1935 intended that
a body known as the Commission on Elections should be the one to supervise
the plebiscite, because the Commission on Elections was not in existence then
as was created only by Commonwealth Act No. 607 approved on August 22,
1940 and amended by Commonwealth Act No. 657 approved on June 21,
1941 (see Taada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed.,
pp. 475-476; Sumulong vs. Commission, 170 Phil. 703, 708-715; 73 Phil. 288,
290-300; Taada & Fernando, Constitution of the Philippines, 1953 ed., Vol. I,
p. 5, Vol. II, pp. 11-19).
Because before August, 1940 the Commission on Election was not yet in
existence, the former Department of Interior (now Department of Local
Governments and Community Development) supervised the plebiscites on the
1937 amendment on woman's suffrage, the 1939 amendment to the
Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of
the U.S. Congress) and the three 1940 amendments on the establishment of
a bicameral Congress, the re-election of the President and the Vice-President,
and the creation of the Commission on Elections (ratified on June 18, 1940).
The supervision of said plebiscites by the then Department of Interior was not
automatic, but by virtue of an express authorization in Commonwealth Act Nos.
34, 49 and 517.
If the National Assembly then intended that the Commission on Elections
should also supervise the plebiscite for ratification of constitutional
amendments or revision, it should have likewise proposed the corresponding
amendment to Article XV by providing therein that the plebiscite on
amendments shall be supervised by the Commission on Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the same
on May 14, 1935 wanted that only the qualified voters under Article V of the
1935 Constitution should participate in the referendum on any amendment or
revision thereof, they could have provided the same in 1935 or in the 1940
amendment by just adding a few words to Article XV by changing the last
phrase to "submitted for ratification to the qualified electors as defined in Article
V hereof," or some such similar phrases.
Then again, the term "people" in Article XV cannot be understood to
exclusively refer to the qualified electors under Article V of the 1935
Constitution because the said term "people" as used in several provisions of
the 1935 Constitution, does not have a uniform meaning. Thus in the
preamble, the term "Filipino people" refer, to all Filipino citizens of all ages of
both sexes. In Section 1 of Article II on the Declaration of Principles, the term
"people" in whom sovereignty resides and from whom all government authority
emanates, can only refer also to Filipino citizens of all ages and of both sexes.
But in Section 5 of the same Article II on social justice, the term "people"
comprehends not only Filipino citizens but also all aliens residing in the country
of all ages and of both sexes. Likewise, that is the same connotation of the
term "people" employed in Section 1(3) of Article III on the Bill of Rights
concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a right to
the electorate, it does so expressly as the case of the election of senators and
congressmen. Section 2 Article VI expressly provides that the senators "shall
be chosen at large by the qualified electors of the Philippines as may provided
by law." Section 5 of the same Article VI specifically provides that
congressmen shall "be elected by the qualified electors." The only provision
that seems to sustain the theory of petitioners that the term "people" in Article
XV should refer to the qualified electors as defined in Article V of the 1935
Constitution is the provision that the President and Vice-President shall be
elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935
Constitution). But this alone cannot be conclusive as to such construction,
because of explicit provisions of Sections 2 and 5 of Article VI, which
specifically prescribes that the senators and congressmen shall be elected by
the qualified electors.
As aforesaid, most of the constitutions of the various states of the United
States, specifically delineate in detail procedure of ratification of amendments
to or revision of said Constitutions and expressly require ratification by
qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process
of the 1934-35 Constitutional Convention satisfied that the amendment shall
be submitted to qualified election for ratification. This proposal was not
accepted indicating that the 1934-35 Constitutional Convention did intend to
limit the term "people" in Article XV of the 1935 Constitution to qualified
electors only. As above demonstrated, the 1934-35 Constitutional Convention
limits the use of the term "qualified electors" to elections of public officials. It
did not want to tie the hands of succeeding future constitutional conventions
as to who should ratify the proposed amendment or revision.
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on
constitutional amendment contemplates the automatic applicability of election
laws to plebiscites on proposed constitutional amendments or revision.
The very phraseology of the specific laws enacted by the National Assembly
and later by Congress, indicates that there is need of a statute expressly
authorizing the application of the election laws to plebiscites of this nature.
Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on
September 30, 1936, consists of 12 sections and, aside from providing that
"there shall be held a plebiscite on Friday, April 30, 1937, on the question of
woman's suffrage ... and that said amendment shall be published in the Official
Gazette in English and Spanish for three consecutive issues at least fifteen
(15) days prior to said election, ... and shall be posted in a conspicuous place
in its municipal and provincial office building and in its polling place not later
than April 22, 1937" (Sec. 12, Com. Act No. 34), specifies that the provisions
of the Election Law regarding, the holding of aspecial election, insofar as said
provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3,
Com. Act No. 34)1; and, that the votes cast according to the returns of the
board of inspectors shall be counted by the National Assembly (Sec. 10, Com.
Act No. 34).
The election laws then in force before 1938 were found in Sections 392-483 of
the Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August
22, 1938, makes it expressly applicable to plebiscites. Yet the subsequent
laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for the
plebiscite on the constitutional amendments in 1939, 1940 and 1946, including
the amendment creating the Commission on Elections, specifically provided
that the provisions of the existing election law shall apply to such plebiscites
insofar as they are not inconsistent with the aforesaid Com. Act Nos. 492 and
517, as well as Rep. Act No. 73. Thus
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a
plebiscite on the proposed amendments to the Constitution adopted by the
National Assembly on September 15, 1939, consists of 8 sections and
provides that the proposed amendments to the Constitution adopted in
Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino
people for approval or disapproval at a general election to be held throughout
the Philippines on Tuesday, October 24, 1939"; that the amendments to said
Constitution proposed in "Res. No. 38, adopted on the same date, shall be
submitted at following election of local officials," (Sec. 1, Com. Act No. 492)
that the said amendments shall be published in English and Spanish in three
consecutive issues of the Official Gazette at least ten (10) days prior to the
elections; that copies thereof shall be posted not later than October 20, 1939
(Sec. 2, Com. Act 492); that the election shall be conducted according to
provisions of the Election Code insofar as the same may be applicable; that
within thirty (30) days after the election, Speaker of the National Assembly
shall request the President to call a special session of the Assembly for the
purpose of canvassing the returns and certify the results thereof (Sec. 6, Com.
Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved on April
25, 1940 and provided, among others: that the plebiscite on the constitutional
amendments providing bicameral Congress, re-election of the President and
Vice-President, and the creation of a Commission on Elections shall be held
at a general election on June 18, 1940 (Sec. 1); that said amendments shall
be published in three consecutive issues of the Official Gazette in English and
Spanish at least 20 days prior to the election and posted in every local
government office building and polling place not later than May 18, 1940 (Sec.
2); that the election shall be conducted in conformity with the Election Code
insofar as the same may be applicable (Sec. 3) that copies of the returns shall
be forwarded to the Secretary of National Assembly and the Secretary of
Interior (Sec. 7); that the National Assembly shall canvass the returns to certify
the results at a special session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on
the parity amendment consists of 8 sections provides that the Amendment
"shall be submitted to the people, for approval or disapproval, at a general
election which shall be held on March 11, 1947, in accordance with the
provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendment shall
be published in English and Spanish in three consecutive issues of the Official
Gazette at least 20 days prior to the election; that copies of the same shall
be posted in a conspicuous place and in every polling place not later than
February 11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act
No. 357 (Election Code) and Com. Act No. 657 creating the Commission on
Elections, shall apply to the election insofar as they are not inconsistent with
this Act (Sec. 3, R.A. No. 73); and that within 30 days after the election, the
Senate and House of Representatives shall hold a joint session to canvass the
returns and certify the results thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935
Constitution does not contemplate nor envision the automatic application of
the election law; and even at that, not all the provisions of the election law were
made applicable because the various laws aforecited contain several
provisions which are inconsistent with the provisions of the Revised Election
Code (Com. Act No. 357). Moreover, it should be noted that the period for the
publication of the copies of the proposed amendments was about 10 days, 15
days or 20 days, and for posting at least 4 days, 8 days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election
Code shall apply to plebiscites (See. 2, R.A. No. 180, as amended, and
Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the
1935 Constitution, there would be no need for Congress to expressly provide
therefor in the election laws enacted after the inauguration of the
Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify who can vote and how
they shall vote. Unlike the various State Constitutions of the American Union
(with few exceptions), Article XV does not state that only qualified electors can
vote in the plebiscite. As above-intimated, most of the Constitutions of the
various states of the United States provide for very detailed amending process
and specify that only qualified electors can vote at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the
Barrio Charter, which was approved on June 17, 1967 and superseded
Republic Act No. 2370, expanded the membership of the barrio assembly to
include citizens who are at least 18 years of age, whether literate or not,
provided they are also residents of the barrio for at least 6 months (Sec. 4,
R.A. No. 3590).
Sec. 4. The barrio assembly. The barrio assembly shall consist of
all persons who are residents of the barrio for at least six
months, eighteen years of age or over, citizens of the Republic of the
Philippines and who are duly registered in the list of barrio assembly
members kept by the Barrio Secretary.
The barrio assembly shall meet at least once a year to hear the annual
report of the barrio council concerning the activities and finances of
the barrio.
It shall meet also at the case of the barrio council or upon written
petition of at least One-Tenth of the members of the barrio assembly.
No meeting of the barrio assembly shall take place unless notice is
given one week prior to the meeting except in matters involving public
safety or security in which case notice within a reasonable time shall
be sufficient. The barrio captain, or in his absence, the councilman
acting as barrio captain, or any assembly member selected during the
meeting, shall act as presiding officer at all meetings of the barrio
assembly. The barrio secretary or in his absence, any member
designated by the presiding officer to act as secretary shall discharge
the duties of secretary of the barrio assembly.
For the purpose of conducting business and taking any official action
in the barrio assembly, it is necessary that at least one-fifth of the
members of the barrio assembly be present to constitute a quorum.
All actions shall require a majority vote of these present at the meeting
there being a quorum.
Sec. 5. Powers of the barrio assembly. The powers of the barrio
assembly shall be as follows:
a. To recommend to the barrio council the adoption of
measures for the welfare of the barrio;
b. To decide on the holding of a plebiscite as provided for in
Section 6 of this Act;
c. To act on budgetary and supplemental appropriations and
special tax ordinances submitted for its approval by the barrio
council; and
 d. To hear the annual report council concerning the activities
and finances of the assembly.
Sec. 6. Plebiscite. A plebiscite may be held in the barrio when
authorized by a majority vote of the members present in the barrio
assembly, there being a quorum, or when called by at least four
members of the barrio council; Provided, however, That no plebiscite
shall be held until after thirty days from its approval by either body,
and such plebiscite has been given the widest publicity in the barrio,
stating the date, time, and place thereof, the questions or issues to be
decided, action to be taken by the voters, and such other information
relevant to the holding of the plebiscite.
All duly registered barrio assembly members qualified to vote may
vote in the plebiscite. Voting procedures may be made either in writing
as in regular election, and/or declaration by the voters to the board of
election tellers. The board of election tellers shall be the same board
envisioned by section 8, paragraph 2 of this Act, in case of vacancies
in this body, the barrio council may fill the same.
A plebiscite may be called to decide on the recall of any member of
the barrio council. A plebiscite shall be called to approve any
budgetary, supplemental appropriations or special tax ordinances.
For taking action on any of the above enumerated measures, majority
vote of all the barrio assembly members registered in the list of barrio
secretary is necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates. Every citizen of the
Philippines, twenty-one years of age or over, able to read and write,
who has been a resident of the barrio during the six months
immediately preceding the election, duly registered in the list of voters
kept by the barrio secretary, who is not otherwise disqualified, may
vote or be a candidate in the barrio elections.
The following persons shall not be qualified to vote:
a. Any person who has been sentenced by final judgment to
suffer one year or more of imprisonment, within two years
after service of his sentence;
b. Any person who has violated his allegiance to the Republic
of the Philippines; and
c. Insane or feeble-minded persons.
All these barrio assembly members, who are at least 18 years of age, although
illiterate, may vote at the plebiscite on the recall of any member of the barrio
council or on a budgetary, supplemental appropriation, or special ordinances,
a valid action on which requires "a majority vote of all of the barrio assembly
members registered in the list of the barrio secretary" (par. 5, Sec. 6, R.A. No.
3590). Such plebiscite may be authorized by a majority vote of the members
present in the barrio assembly, there being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens, who
are at least 21 years of age, able to read and write, residents of the barrio
during the 6 months immediately preceding the election and duly registered in
the list of voters kept by the barrio secretary, not otherwise disqualified, may
vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that
"voting procedures may be made ... either in writing as in regular elections,
and/or declaration by the voters to the board of election tellers."
That said paragraph 2 of Section 6 provides that "all duly registered barrio
assembly members qualified to vote may vote in the plebiscite," cannot sustain
the position of petitioners in G.R. No. L-36165 that only those who are 21 years
of age and above and who possess all other qualifications of a voter under
Section 10 of R.A. No. 3590, can vote on the plebiscites referred to in Section
6; because paragraph 3 of Section 6 does not expressly limit the voting to
those with the qualifications under Section 10 as said Section 6 does not
distinguish between those who are 21 or above on the one hand and those 18
or above but below 21 on the other, and whether literate or not, to constitute a
quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered
members of the barrio assembly can vote as long as they are 18 years of age
or above; and that only those who are 21 years of age or over and can read
and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio assembly
to those who are at least 18 years of age, whether literate or not. Republic Act
No. 3590 could simply have restated Section 4 of Republic Act No. 2370, the
old Barrio Charter, which provided that only those who are 21 and above can
be members of the barrio assembly.
Counsels Salonga and Taada as well as all the petitioners in L-36165 and
two of the petitioners in L-36164 participated in the enactment of Republic Act
No. 3590 and should have known the intendment of Congress in expanding
the membership of the barrio assembly to include all those 18 years of age
and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a constituent
assembly, can include 18-year olds as qualified electors for barrio plebiscites,
this prerogative can also be exercised by the Chief Executive as delegate of
the Constitutional Convention in regard to the plebiscite on the 1973
Constitution.
As heretofore stated, the statement by the President in Presidential
Proclamation No. 1102 that the 1973 Constitution was overwhelmingly ratified
by the people through the Citizens' Assemblies in a referendum conducted
from January 10 to 15, 1973, should be accorded the presumption of
correctness; because the same was based on the certification by the Secretary
of the Department of Local Government and Community Development who
tabulated the results of the referendum all over the country. The accuracy of
such tabulation and certification by the said Department Secretary should
likewise be presumed; because it was done in the regular performance of his
official functions aside from the fact that the act of the Department Secretary,
as an alter ego of the President, is presumptively the act of the President
himself unless the latter disapproves or reprobates the same (Villena vs.
Secretary of Interior, 67 Phil. 451 ). The truth of the certification by the
Department Secretary and the Chief Executive on the results of the
referendum, is further strengthened by the affidavits and certifications of
Governor Isidro Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon
City and Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman suffrage,
the 1939 amendment to the ordinance appended to the 1935 Constitution, the
1940 amendments establishing the bicameral Congress, creating the
Commission on Elections and providing for two consecutive terms for the
President, and the 1947 parity amendment, cannot be invoked; because those
amendments were proposed by the National Assembly as expressly
authorized by Article V of the 1935 Constitution respecting woman suffrage
and as a constituent assembly in all the other amendments aforementioned
and therefore as such, Congress had also the authority to prescribe the
procedure for the submission of the proposed amendments to the 1935
Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent
Constitutional Convention, which as heretofore discussed, has the equal
power to prescribe the modality for the submission of the 1973 Constitution to
the people for ratification or delegate the same to the President of the
Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto
Amoranto could be utilized as the basis for the extrapolation of the Citizens'
Assemblies in all the other provinces, cities and municipalities in all the other
provinces, cities and municipalities, and the affirmative votes in the Citizens'
Assemblies resulting from such extrapolation would still constitute a majority
of the total votes cast in favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the certification of the
Department of Local Government and Community Development that in Rizal
there were 1,126,000 Yes votes and 100,310 No votes, the certification of
Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes votes against
292,530 No votes. In Cavite province, there were 249,882 Yes votes against
12,269 No votes as disclosed in Annex 1-A of respondents' Compliance (the
certification by the Department of Local Government and Community
Development), while the alleged certification of Governor Lino Bocalan of
Cavite shows only 126,163 Yes votes and 5,577 No votes. If such a ratio is
extended by way of extrapolation to the other provinces, cities and towns of
the country, the result would still be an overwhelming vote in favor of the 1973
Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true;
because in his duly acknowledged certification dated March 16, 1973, he
states that since the declaration of martial law and up to the present time, he
has been under house arrest in his residence in Urdaneta Village, Makati,
Rizal; that he never participated in the conduct of the Citizens' Assemblies on
January 10 15, 1973 in the province of Cavite; that the acting chairman and
coordinator of the Citizens' Assemblies at that time was Vice-Governor
Dominador Camerino; and that he was shown a letter for his signature during
the conduct of the Citizens' Assemblies, which he did not sign but which he
referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated
March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973
stating that on January 15, 1973, he caused the preparation of a letter
addressed to Secretary Jose Roo of the Department of Local Government
and Community Development showing the results of the referendum in Pasay
City; that on the same day, there were still in any Citizens' Assemblies holding
referendum in Pasay City, for which reason he did not send the aforesaid letter
pending submittal of the other results from the said Citizens' Assemblies; and
that in the afternoon of January 15, 1973, he indorsed the complete certificate
of results on the referendum in Pasay City to the Office of the President (Annex
5-Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay
City also issued an affidavit dated March 15, 1973 stating that a certain Atty.
Delia Sutton of the Salonga Law Office asked him for the results of the
referendum; that he informed her that he had in his possession unsigned
copies of such results which may not be considered official as they had then
no knowledge whether the original thereof had been signed by the mayor; and
that in spite of his advice that said unsigned copies were not official, she
requested him if she could give her the unofficial copies thereof, which he gave
in good faith (Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens'
Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). The
fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer
Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far
as we know, there has been no Citizens' Assembly meeting in our Area,
particularly in January of this year," does not necessarily mean that there was
no such meeting in said barrio; for she may not have been notified thereof and
as a result she was not able to attend said meeting. Much less can it be a basis
for the claim that there was no meeting at all in the other barrios of Quezon
City. The barrio captain or the secretary of the barrio assembly could have
been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City
Ratification and Coordinating Council, certified on March 12, 1973 that as such
chairman he was in charge of the compilation and tabulation of the results of
the referendum among the Citizens' Assemblies in Quezon City based on the
results submitted to the Secretariat by the different Citizens' Assemblies; but
many results of the referendum were submitted direct to the national agencies
having to do with such activity and all of which he has no knowledge,
participation and control (Annex 4 Rejoinder of the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973
that he prepared a letter to the President dated January 15, 1973 informing
him of the results of the referendum in Rizal, in compliance with the instruction
of the National Secretariat to submit such letter 2 or 3 days from January 10
to show the trend of voting in the Citizens' Assemblies; that the figures 614,157
and 292,530 mentioned in said letter were based on the certificates of results
in his possession as of January 14, 1973, which results were made the basis
of the computation of the percentage of voting trend in the province; that his
letter was never intended to show the final or complete result in the referendum
in the province as said referendum was then still going on from January 14-
17, 1973, for which reason the said letter merely stated that it was only a
"summary result"; and that after January 15, 1973, he sent to the National
Secretariat all the certificates of results in 26 municipalities of Rizal for final
tabulation (Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of
Local Government and Community Development, issued a certificate dated
March 16, 1973 that she was shown xerox copies of unsigned letters allegedly
coming from Governor Lino Bocalan dated January 15, 1973 and marked
"Rejoinder Annex Cavite" addressed to the President of the Philippines
through the Secretary of the Department of Local Government and Community
Development and another unsigned letter reportedly from Mayor Pablo Cuneta
dated January 15, 1973 and marked "Rejoinder Annex Pasay City" addressed
to the Secretary of the Department of Local Government and Community
Development; that both xerox copies of the unsigned letters contain figures
showing the results of the referendum of the Citizens' Assemblies in those
areas; and that the said letters were not received by her office and that her
records do not show any such documents received by her office (Annex 2-
Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive this
Court by representing said unsigned letters and/or certificates as duly signed
and/or containing the complete returns of the voting in the Citizens'
Assemblies.
The observation We made with respect to the discrepancy between the
number of Yes votes and No votes contained in the summary report of
Governor Rodriguez of Rizal as well as those contained in the alleged report
of Governor Lino Bocalan of Cavite who repudiated the same as not having
been signed by him for he was then under house arrest, on the one hand, and
the number of votes certified by the Department of Local Government and
Community Development, on the other, to the effect that even assuming the
correctness of the figures insisted on by counsel for petitioners in L-36165, if
they were extrapolated and applied to the other provinces and cities of the
country, the Yes votes would still be overwhelmingly greater than the No votes,
applies equally to the alleged discrepancy between the figures contained in
the certification of the Secretary of the Department of Local Government and
Community Development and the figures furnished to counsel for petitioners
in L-36165 concerning the referendum in Camarines Sur, Bataan and Negros
Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines Sur,
shows that there were more votes in favor of the plebiscite to be held later than
those against, only serve to emphasize that there was freedom of voting
among the members of the Citizens' Assemblies all over the country during
the referendum from January 10 to 15, 1973 (Annex-6 Camarines Sur to
Rejoinder of Petitioners in L-36165). If there was no such freedom of choice,
those who wanted a plebiscite would not outnumber those against holding
such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the
"strong manifestation of approval of the new Constitution by almost 97% by
the members of the Citizens' Assemblies in Camarines Sur" (Annex-
Camarines Sur to Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the members
of the Citizens' Assemblies voted overwhelmingly in favor of the new
Constitution despite the fact that the second set of questions including the
question "Do you approve of the new Constitution?" was received only on
January 10. Provincial Governor Pascual stated that "orderly conduct and
favorable results of the referendum" were due not only to the coordinated
efforts and cooperation of all teachers and government employees in the area
but also to the enthusiastic participation by the people, showing "their
preference and readiness to accept this new method of government to people
consultation in shaping up government policies." (Annex-Bataan to Rejoinder
of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new
Constitution are registered in the book of voters; it is enough that they are
electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A
744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in the
referendum in certain localities may exceed the number of voters actually
registered for the 1971 elections, can only mean that the excess represents
the qualified voters who are not yet registered including those who are at least
15 years of age and the illiterates. Although ex-convicts may have voted also
in the referendum, some of them might have been granted absolute pardon or
were sentenced to less than one year imprisonment to qualify them to vote
(Sec. 201, 1971 Rev. Election Code). At any rate, the ex-convicts constitute a
negligible number, discounting which would not tilt the scale in favor of the
negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs
to the Liberal Party, stated in his letter dated March 13, 1973 that he does not
"feel authorized by the proper authorities to confirm or deny the data"
concerning the number of participants, the Yes votes and No votes in the
referendum on the new Constitution among the members of the Citizens'
Assemblies in Caloocan City, does not necessarily give rise to the inference
that Mayor Samson of Caloocan City is being intimidated, having been recently
released from detention; because in the same letter of Mayor Samson, he
suggested to counsel for petitioners in L-36165 that he can secure "the true
and legitimate results of the referendum" from the Office of the President
(Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not
learned and eminent counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies heavily on
the computation of the estimated turnover in the Citizens' Assemblies
referendum on January 10 to 15, 1973 by a certain Professor Benjamin R.
Salonga, of the Mapua Institute of Technology, ostensibly a close relative of
former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165
(Annex M-as amended, to Consolidated Rejoinder of petitioners in L-36165 to
the Notes of Arguments and Memorandum of respondents). Professor
Salonga is not a qualified statistician, which all the more impairs his credibility.
Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter
dated March 16, 1973 address to the Secretary of the Department of Local
Government and Community Development, refutes the said computation of
Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all qualified registered
voters and the 15-20-year-old youths (1972) will have to be estimated
in order to give a 101.9% estimate of the percentage participation of
the "15-20 year old plus total number of qualified voters" which does
not deem to answer the problem. This computation apparently fails to
account for some 5.6 million persons "21 years old and over" who
were not registered voters (COMELEC), but who might be qualified to
participate at the Citizen's Assembly.
2) The official population projection of this office (medium assumption)
for "15 year olds and over" as of January 1, 1973 is 22.506 million. If
total number of participants at the Citizens' Assembly Referendum
held on January 10-15, 1973 was 16.702 million, participation rate will
therefore be the ratio of the latter figure to the former which gives
74.2%.
3) 1 cannot also understand c-2 "Solution to Problem 11." The
"difference or implied number of 15-20 year olds" of 5,039,906 would
represent really not only all 15-year olds and over who participated at
the Citizens' Assembly but might not have been registered voters at
the time, assuming that all the 11,661,909 registered voted at Citizens'
Assembly. Hence, the "estimate percentage participation of 15-20
years olds" of 105.6% does not seem to provide any meaningful
information.
To obtain the participation rate of "15-20 years old" one must divide
the number in this age group, which was estimated to be 4.721 million
as of January 1, 1973 by the population of "15 years old and over" for
the same period which was estimated to be 22.506 million, giving
21.0%.
In Problem III, it should be observed that registered voters also include
names of voters who are already dead. It cannot therefore be
assumed that all of them participated at the Citizens' Assembly. It can
therefore be inferred that "a total number of persons 15 and over
unqualified/disqualified to vote" will be more than 10,548,197 and
hence the "difference or implied number of registered voters that
participated" will be less than 6,153,618.
 I have reservations on whether an "appropriate number of qualified
voters that supposedly voted" could be meaningfully estimated.
5) The last remark will therefore make the ratio (a) [Solution to
Problem] more than 1.71 and that for (b), accordingly, will also be less
than 36.8%." (Annex F Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as of
January 21, 1973, the official population projection for 15-year olds and over
is 22,506,000. If 16,702,000 voted in the referendum, the participation ratio
would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered
11,661,909, the difference between 16,702,000 who participated in the
referendum and the registered electors of 11,661,909 for the November 8,
1971 elections, is 5,040,091, which may include not only the 15-year olds and
above but below 21 but also the qualified electors who were not registered
before the November 8, 1971 elections as well as illiterates who are 15 years
old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found that
the incumbent President obtained over 5,000,000 votes as against about
3,000,000 votes for his rival LP Senator Sergio Osmea, Jr., garnering a
majority of from about 896,498 to 1,436,118 (Osmea, Jr. vs. Marcos,
Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that those
who voted for the incumbent President in 1969 did not vote in favor of the 1973
Constitution during the referendum from January 10 to 15, 1973. It should also
be stressed that many of the partisans of the President in the 1969 Presidential
elections, have several members in their families and relatives who are
qualified to participate in the referendum because they are 15 years or above
including illiterates, which fact should necessarily augment the number of
votes who voted for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is necessarily
inconsistent with freedom of choice, because the people fear to disagree with
the President and Commander-in-Chief of the Armed Forces of the Philippines
and therefore cannot voice views opposite to or critical of the position of the
President on the 1973 Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free choice during martial law
which inevitably generates fear in the individual. Even without martial law, the
penal, civil or administrative sanction provided for the violation of ordinarily
engenders fear in the individual which persuades the individual to comply with
or obey the law. But before martial law was proclaimed, many individuals fear
such sanctions of the law because of lack of effective equal enforcement or
implementation thereof in brief, compartmentalized justice and extraneous
pressures and influences frustrated the firm and just enforcement of the laws.
The fear that is generated by martial law is merely the fear of immediate
execution and swift enforcement of the law and therefore immediate infliction
of the punishment or sanction prescribed by the law whenever it is
transgressed during the period of martial law. This is not the fear that affects
the voters' freedom of choice or freedom to vote for or against the 1973
Constitution. Those who cringe in fear are the criminals or the law violators.
Surely, petitioners do not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or raising of hands
violates the secrecy of the ballot as by the election laws. But the 1935
Constitution does not require secret voting. We search in vain for such
guarantee or prescription in said organic law. The Commission on Elections
under the 1940 Amendment, embodied as Article X is merely mandated to
insure "free, orderly and honest election." Congress, under its plenary law-
making authority, could have validly prescribed in the election law open voting
in the election of public officers, without trenching upon the Constitution. Any
objection to such a statute concerns its wisdom or propriety, not its legality or
constitutionality. Secret balloting was demanded by partisan strife in elections
for elective officials. Partisanship based on party or personal loyalties does not
generally obtain in a plebiscite on proposed constitutional amendments or on
a new Constitution. We have seen even before and during martial law that
voting in meetings of government agencies or private organizations is usually
done openly. This is specially true in sessions of Congress, provincial boards,
city councils, municipal boards and barrio councils when voting on national or
local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the Citizens'
Assemblies. It might have been true in certain areas, but that does not
necessarily mean that it was done throughout the country.
The recent example of an open voting is the last election on March 3, 1973 of
the National Press Club officers who were elected by acclamation presided
over by its former president, petitioner Eduardo Monteclaro in L-36236 (see
Bulletin Today, p. 8, March 3, 1973 issue). There can be no more hardboiled
group of persons than newspapermen, who cannot say that voting among
them by acclamation was characterized by fear among the members of the
National Press Club.
Moreover, petitioners would not be willing to affirm that all the members of the
citizenry of this country are against the new Constitution. They will not deny
that there are those who favor the same, even among the 400,000 teachers
among whom officers of the Department of Education campaigned for the
ratification of the new Constitution.
Not one of the petitioners can say that the common man farmer, laborer,
fisherman, lowly employee, jeepney driver, taxi driver, bus driver, pedestrian,
salesman, or salesgirl does not want the new Constitution, or the reforms
provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given to the
new Constitution. This is quite inaccurate; because even before the election in
November, 1970 of delegates to the Constitutional Convention, the proposed
reforms were already discussed in various forums and through the press as
well as other media of information. Then after the Constitutional Convention
convened in June, 1971, specific reforms advanced by the delegates were
discussed both in committee hearings as well as in the tri-media the press,
radio and television. Printed materials on the proposed reforms were circulated
by their proponents. From June, 1971 to November 29, 1972, reforms were
openly discussed and debated except for a few days after the proclamation of
martial law on September 21, 1972. From the time the Constitutional
Convention reconvened in October, 1972 until January 7, 1973, the provisions
of the new Constitution were debated and discussed in forums sponsored by
private organizations universities and debated over the radio and on television.
The Philippines is a literate country, second only to Japan in the Far East, and
more literate perhaps than many of mid-western and southern states of the
American Union and Spain. Many residents in about 1,500 towns and 33,000
barrios of the country have radios. Even the illiterates listened to radio
broadcasts on and discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist, Teodoro Valencia in
his column in Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood
producer director (Tora, Tora, Tora) went around the country doing a 30-
minute documentary on the Philippines for American television stated that
what impressed him most in his travel throughout the country was the general
acceptance of the New Society by the people which he saw in his 6-week travel
from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily
Express, March 3, and Sunday Express, March 4), Secretary of the United
States Senate, who conducted a personal survey of the country as delegate
of Senator Mike Mansfield, Chairman, Committee on US-Philippine relations,
states:
Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines. President Marcos has been prompt and
sure-footed in using the power of presidential decree under martial law
for this purpose. He has zeroed in on areas which have been widely
recognized as prime sources of the nation's difficulties land
tenancy, official corruption, tax evasion and abuse of oligarchic
economic power. Clearly, he knows the targets. What is not yet certain
is how accurate have been his shots. Nevertheless, there is marked
public support for his leadership and tangible alternatives have not
been forthcoming. That would suggest that he may not be striking too
far from the mark.
The United States business community in Manila seems to have been
re-assured by recent developments ... . (Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the country,
who constitute the majority of the population, do not like the reforms stipulated
in the new Constitution, as well as the decrees, orders and circulars issued to
implement the same. It should be recalled, as hereinbefore stated, that all
these reforms were the subject of discussion both in the committee hearings
and on the floor of the Constitutional Convention, as well as in public forums
sponsored by concerned citizens or civic organizations at which Con-Con
delegates as well as other knowledgeable personages expounded their views
thereon and in all the media of information before the proclamation of martial
law on September 21, 1972. This is the reason why the Constitutional
Convention, after spending close to P30 million during the period from June 1,
1971 to November 29, 1972, found it expedient to accelerate their proceedings
in November, 1972 because all views that could possibly be said on the
proposed provisions of the 1973 Constitution were already expressed and
circulated. The 1973 Constitution may contain some unwise provisions. But
this objection to such unwise or vague provisions, as heretofore stated, refers
to the wisdom of the aforesaid provisions, which issue is not for this Court to
decide; otherwise We will be substituting Our judgment for the judgment of the
Constitutional Convention and in effect acting as a constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE
POWERS DURING MARTIAL LAW.
The position of the respondent public officers that undermartial law, the
President as Commander-in-Chief is vested with legislative powers, is
sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83
Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs. Styer (75
Phil. 563, 571-72). The trial of General Kuroda was after the surrender of
Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no
more martial law in the Philippines.
 ... Consequently, in the promulgation and enforcement of Executive
Order No. 68, the President of the Philippines has acted in conformity
with the generally accepted principles and policies of international law
which are part of our Constitution.
The promulgation of said executive order is an exercise by the
President of his powers as Commander in Chief of all our armed
forces, as upheld by this Court in the case of Yamashita vs. Styver (L-
129, 42 Off. Gaz., 664) when we said
"War is not ended simply because hostilities have ceased.
After cessation of armed hostilities, incidents of war may
remain pending which should be disposed of as in time of war.
"An important incident to a conduct of war is the adoption
measures by the military command not only to repel and
defeat the enemies but to seize and subject to disciplinary
measures those enemies who in their attempt to thwart or
impede our military effort have violated the law of war." (Ex
parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power
to create a military commission for the trial and punishment of
war criminals is an aspect of waging war. And, in the language
of a writer, a military commission "has jurisdiction so long as
the technical state of war continues. This includes the period
of an armistice, or military occupation, up to the effective date
of treaty of peace, and may extend beyond, by treaty
agreement." (Cowles, Trial of War Criminals by Military
Tribunals, American Bar Association Journal, June, 1944).
Consequently, the President as Commander-in-Chief is fully
empowered to consummate this unfinished aspect of war, namely the
trial and punishment of war criminals, through the issuance and
enforcement of Executive Order No. 68. (83 Phil. 177-178; emphasis
supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to
subscribe to this view, when, in his concurring opinion in Duncan vs.
Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise of
the power which resides in the executive branch of the government to preserve
order and insure the public safety in times of emergency, when other branches
of the government are unable to function, or their functioning would itself
threaten the public safety." (Emphasis supplied). There is an implied
recognition in the aforesaid definition of martial law that even in places where
the courts can function, such operation of the courts may be affected by martial
law should their "functioning ... threaten the public safety." It is possible that
the courts, in asserting their authority to pass upon questions which may
adversely affect the conduct of the punitive campaign against rebels,
secessionists, dissidents as well as subversives, martial law may restrict such
judicial function until the danger to the security of the state and of the people
shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some instances
might become an outright dictatorship, can have no other
purposes than the preservation of the independence of the
state, the maintenance of the existing constitutional order, and
the defense of the political and social liberties of the people. It
is important to recognize the true and limited ends of any
practical application of the principle of constitutional
dictatorship. Perhaps the matter may be most clearly stated
in this way: the government of a free state is proceeding on
its way and meeting the usual problems of peace and normal
times within the limiting framework of its established
constitutional order. The functions of government are
parceled out among a number of mutually independent offices
and institutions; the power to exercise those functions is
circumscribed by well-established laws, customs, and
constitutional prescriptions; and the people for whom this
government was instituted are in possession of a lengthy
catalogue of economic, political, and social rights which their
leaders recognize as inherent and inalienable. A severe crisis
arises the country is invaded by a hostile power, or a
dissident segment of the citizenry revolts, or the impact of a
world-wide depression threatens to bring the nation's
economy in ruins. The government meets the crisis by
assuming more powers and respecting fewer rights. The
result is a regime which can act arbitrarily and even
dictatorially in the swift adaption of measures designed to
save the state and its people from the destructive effects of
the particular crisis. And the narrow duty to be pursued by this
strong government, this constitutional dictatorship? Simply
this and nothing more: to end the crisis and restore normal
times. The government assumes no power and abridges no
right unless plainly indispensable to that end; it extends no
further in time than the attainment of that end; and it makes
no alteration in the political, social and economic structure of
the nation which cannot be eradicated with the restoration of
normal times. In short, the aim of constitutional dictatorship is
the complete restoration of the status quo ante bellum. This
historical fact does not comport with philosophical theory, that
there never has been a perfect constitutional dictatorship, is
an assertion that can be made without fear of contradiction.
 But this is true of all institutions of government, and the
principle of constitutional dictatorship remains eternally valid
no matter how often and seriously it may have been violated
in practice. (Constitutional Dictatorship, 1948 ed., by Clinton
L. Rossiter, p. 7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief
Executive exercises legislative power, whether of temporary or permanent
character, thus:
The measures adopted in the prosecution of a constitutional
dictatorship should never be permanent in character or effect.
Emergency powers are strictly conditioned by their purpose and this
purpose is the restoration of normal conditions. The actions directed
to this end should therefore be provisional. For example, measures of
a legislative nature which work a lasting change in the structure of the
state or constitute permanent derogations from existing law should not
be adopted under an emergency enabling act, at least not without the
positively registered approval of the legislature. Permanent laws,
whether adopted in regular or irregular times, are for parliaments to
enact. By this same token, the decisions and sentences of
extraordinary courts should be reviewed by the regular courts after the
termination of the crisis.
But what if a radical act of permanent character, one working lasting
changes in the political and social fabric, is indispensable to the
successful prosecution of the particular constitutional
dictatorship? The only answer can be: it must be resolutely taken and
openly acknowledged. President Lincoln found it necessary to
proceed to the revolutionary step of emancipation in aid of his
conservative purpose of preserving the Union; as a constitutional
dictator he had a moral right to take this radical action. Nevertheless,
it is imperative that any action with such lasting effects should
eventually receive the positive approval of the people or of their
representatives in the legislature. (P. 303, emphasis supplied).
From the foregoing citations, under martial law occasioned by severe crisis
generated by revolution, insurrection or economic depression or dislocation,
the government exercises more powers and respects fewer rights in order "to
end the crisis and restore normal times." The government can assume
additional powers indispensable to the attainment of that end the complete
restoration of peace. In our particular case, eradication of the causes that
incited rebellion and subversion as secession, is the sine qua non to the
complete restoration of normalcy. Exercise of legislative power by the
President as Commander in Chief, upon his proclamation of martial law, is
justified because, as he professes, it is directed towards the institution of
radical reforms essential to the elimination of the causes of rebellious,
insurgent or subversive conspiracies and the consequent dismantling of the
rebellious, insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as
Proclamation No. 1102 is indispensable to the effectuation of the reforms
within the shortest possible time to hasten the restoration of normalcy.
"Must the government be too strong for the liberties of the people; or must it
be too weak to maintain its existence?" That was the dilemma that vexed
President Lincoln during the American Civil War, when without express
authority in the Constitution and the laws of the United States, he suspended
one basic human freedom the privilege of the writ of habeas corpus in
order to preserve with permanence the American Union, the Federal
Constitution of the United States and all the civil liberties of the American
people. This is the same dilemma that presently confronts the Chief Executive
of the Republic of the Philippines, who, more than the Courts and Congress,
must, by express constitutional mandate, secure the safety of our Republic
and the rights as well as lives of the people against open rebellion, insidious
subversion secession. The Chief Executive announced repeatedly that in
choosing to proclaim martial law, the power expressly vested in him by the
1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our national
and individual survival in peace and freedom, he is in effect waging a peaceful,
democratic revolution from the center against the violent revolution and
subversion being mounted by the economic oligarchs of the extreme right, who
resist reforms to maintain their economic hegemony, and the communist
rebels a Maoist oriented secessionists of the extreme left who demand swift
institution of reforms. In the exercise of his constitutional and statutory powers,
to save the state and to protect the citizenry against actual and threatened
assaults from insurgents, secessionists and subversives, doctrinaire concepts
and principles, no matter how revered they may be by jurisprudence and time,
should not be regarded as peremptory commands; otherwise the dead hand
of the past will regulate and control the security and happiness of the living
present. A contrary view would be to deny the self-evident proposition that
constitutions and laws are mere instruments for the well-being, peace, security
and prosperity of the country and its citizenry. The law as a means of social
control is not static but dynamic. Paraphrasing Mr. Justice Frankfurter, the
Constitution is neither a printed finality nor the imprisonment of the past, but
the enfolding of the future. In the vein of Mr. Justice Holmes, the meaning of
the words of the Constitution is not to be determined by merely opening a
dictionary. Its terms must be construed in the context of the realities in the life
of a nation it is intended to serve. Because experience may teach one
generation to doubt the validity and efficacy of the concepts embodied in the
existing Constitution and persuade another generation to abandon them
entirely, heed should be paid to the wise counsel of some learned jurists that
in the resolution of constitutional questions like those posed before Us
the blending of idealism and practical wisdom or progressive legal realism
should be applied (see Alexander M. Bickel, the Supreme Court and the Idea
of Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency
for human betterment" and constitutional law "is applied politics using the word
in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6;
emphasis supplied). Justice Brandeis gave utterance to the truth that "Our
Constitution is not a straight jacket. It is a living organism. As such, it is capable
of growth or expansion and adaptation to new conditions. Growth implies
changes, political, economic and social." (Brandeis Papers, Harvard Law
School; emphasis supplied). Harvard Professor Thomas Reed Powell
emphasizes "practical wisdom," for "the logic of constitutional law is the
common sense of the Supreme Court." (Powell, the Validity of State
Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112,
138-139, cited in Bickel's Opus, supra; emphasis supplied).
The eternal paradox in this finite world of mortal and fallible men is that nothing
is permanent except change. Living organisms as well as man-made
institutions are not immutable. Civilized men organize themselves into a State
only for the purpose of serving their supreme interest their welfare. To
achieve such end, they created an agency known as the government. From
the savage era thru ancient times, the Middle Ages, the Dark Ages and the
Renaissance to this era of sophisticated electronics and nuclear weaponry,
states and governments have mutated in their search for the magic instrument
for their well-being. It was trial and error then as it is still now. Political
philosophies and constitutional concepts, forms and kinds of government, had
been adopted, overturned, discarded, re-adopted or modified to suit the needs
of a given society at a particular given epoch. This is true of constitutions and
laws because they are not "the infallible instruments of a manifest destiny." No
matter how we want the law to be stable, it cannot stand still. As Mr. Justice
Holmes aptly observed, every "constitution is an experiment as all life is an
experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not
logic, but experience." In the pontifical tones of Mr. Justice Benjamin Nathan
Cardozo, "so long as society is inconstant, there can be no constancy in law,"
and "there will be change whether we will it or not." As Justice Jose P. Laurel
was wont to say, "We cannot, Canute-like, command the waves of progress to
halt."
Thus, political scientists and jurists no longer exalt with vehemence a
"government that governs least." Adherents there are to the poetic dictum of
Alexander Pope: "For forms of government let fools contest; whatever is best
administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In
between, the shades vary from direct democracy, representative democracy,
welfare states, socialist democracy, mitigated socialism, to outright
communism which degenerated in some countries into totalitarianism or
authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to
factual situations in the seclusion of his ivory tower, must perforce submit to
the inexorable law of change in his views, concepts, methods and techniques
when brought into the actual arena of conflict as a public functionary face
to face with the practical problems of state, government and public
administration. And so it is that some learned jurists, in the resolution of
constitutional issues that immediately affect the lives, liberties and fortunes of
the citizens and the nation, recommend the blending of idealism with practical
wisdom which legal thinkers prefer to identify as progressive legal realism. The
national leader, who wields the powers of government, must and has to
innovate if he must govern effectively to serve the supreme interests of the
people. This is especially true in times of great crises where the need for a
leader with vision, imagination, capacity for decision and courageous action is
greater, to preserve the unity of people, to promote their well-being, and to
insure the safety and stability of the Republic. When the methods of rebellion
and subversion have become covert, subtle and insidious, there should be a
recognition of the corresponding authority on the part of the Commander-in-
Chief of the Armed Forces to utilize all the available techniques to suppress
the peril to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding fathers
of the American Constitution and former President of the United States, who
personifies the progressive liberal, spoke the truth when he said that some
men "ascribe men of the preceding age a wisdom more than human, and
suppose what they did to be beyond amendment. ... But I know also, that laws
and institutions must go hand in hand with the progress of the human mind.
As that becomes more developed, more enlightened, as new discoveries are
made, new truths disclosed and manners and opinions change, with the
change of circumstances, institutions must also advance, and keep pace with
the times." (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the
perspective of history. It cannot be adequately and fairly appraised within the
present ambience, charged as it is with so much tension and emotion, if not
partisan passion. The analytical, objective historians will write the final verdict
in the same way that they pronounced judgment on President Abraham
Lincoln who suspended the privilege of the writ of habeas corpuswithout any
constitutional or statutory authority therefor and of President Franklin Delano
Roosevelt who approved the proclamation of martial law in 1941 by the
governor of Hawaii throughout the Hawaiian territory. President Lincoln not
only emancipated the Negro slaves in America, but also saved the Federal
Republic of the United States from disintegration by his suspension of the
privilege of the writ of habeas corpus, which power the American Constitution
and Congress did not then expressly vest in him. No one can deny that the
successful defense and preservation of the territorial integrity of the United
States was due in part, if not to a great extent, to the proclamation of martial
law over the territory of Hawaii main bastion of the outer periphery or the
outpost of the American defense perimeter in the Pacific which protected
the United States mainland not only from actual invasion but also from aerial
or naval bombardment by the enemy. Parenthetically, the impartial observer
cannot accurately conclude that the American Supreme Court acted with
courage in its decision in the cases of Ex parte Milligan and Duncan vs.
Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided
on April 3, 1866, and opinion delivered on December 17, 1866) after the lifting
of the proclamation suspending the privilege of the writ of habeas corpus, long
after the Civil War and the Second World ended respectively on April 9 or 26,
18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on
September 2, 1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p. 799). Was
the delay on the part of the American Supreme Court in deciding these cases
against the position of the United States President in suspending the
privilege of the writ of habeas corpus in one case and approving the
proclamation of martial law in the other deliberate as an act of judicial
statesmanship and recognition on their part that an adverse court ruling during
the period of such a grave crisis might jeopardize the survival of the Federal
Republic of the United States in its life-and-death struggle against an
organized and well armed rebellion within its own borders and against a
formidable enemy from without its territorial confines during the last global
armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES
MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat
and Jose Roy to convene the Senate of the Philippines even on the
assumption that the 1935 Constitution still subsists; because pursuant to the
doctrine of separation of powers under the 1935 Constitution, the processes
of this Court cannot legally reach a coordinate branch of the government or its
head. This is a problem that is addressed to the Senate itself for resolution; for
it is purely an internal problem of the Senate. If a majority of the senators can
convene, they can elect a new Senate President and a new Senate President
Pro Tempore. But if they have no quorum, those present can order the arrest
of the absent members (Sec. 10[2], Art. VI, 1935 Constitution). If this fails, then
there is no remedy except an appeal to the people. The dictum ubi jus, ubi
remedium, is not absolute and certainly does not justify the invocation of the
power of this Court to compel action on the part of a co-equal body or its
leadership. This was emphasized with sufficient clarity by this Court in the
1949 case of Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the
distinguished counsels for the petitioners in L-36164 and L-36165 are familiar.
We stress that the doctrine of separation of powers and the political nature of
the controversy such as this, preclude the interposition of the Judiciary to
nullify an act of a coordinate body or to command performance by the head of
such a co-ordinate body of his functions..
Mystifying is the posture taken by counsels for petitioners in referring to the
political question doctrine almost in mockery as a magic formula which
should be disregarded by this Court, forgetting that this magic formula
constitutes an essential skein in the constitutional fabric of our government,
which, together with other basic constitutional precepts, conserves the unity of
our people, strengthens the structure of the government and assures the
continued stability of the country against the forces of division, if not of
anarchy.
Moreover, if they have a quorum, the senators can meet anywhere. Validity of
the acts of the Senate does not depend on the place of session; for the
Constitution does not designate the place of such a meeting. Section 9 of
Article VI imposes upon Congress to convene in regular session every year on
the 4th Monday of January, unless a different date is fixed by law, or on special
session called by the President. As former Senator Arturo Tolentino, counsel
for respondents Puyat and Roy in L-36165, stated, the duty to convene is
addressed to all members of Congress, not merely to its presiding officers. The
fact that the doors of Congress are padlocked, will not prevent the senators
especially the petitioners in L-36165 if they are minded to do so, from
meeting elsewhere at the Sunken Gardens, at the Luneta Independence
Grandstand, in any of the big hotels or theaters, in their own houses, or at the
Araneta Coliseum, which is owned by the father-in-law of petitioner Gerardo
Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise in futility,
for it cannot validly meet without the lower House (Sec. 10[5], Art. VI, 1935
Constitution). Hence, this petition by five former senators formandamus in L-
36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for
respondents Puyat and Roy, mandamus will lie only if there is a law imposing
on the respondents the duty to convene the body. The rule imposing such a
duty invoked by petitioners in L-36165 is purely an internal rule of the Senate;
it is not a law because it is not enacted by both Houses and approved by the
President.
The Constitutional provision on the convening of Congress, is addressed to
the individual members of the legislative body (Sec. 9, Art. VI of 1935
Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973 CONSTITUTION
REQUIRES EIGHT OR TEN VOTES OF
SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray for a declaration that
the alleged ratification of the 1973 Constitution is null and void and that the
said 1973 Constitution be declared unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the President
as Commander-in-Chief during martial law as directly delegated to him by
Section 10(2) of Article VII of the 1935 Constitution.
A declaration that the 1973 Constitution is unenforceable and inoperative is
practically deciding that the same is unconstitutional. The proposed
Constitution is an act of the Constitutional Convention, which is co-equal and
coordinate with as well as independent of either Congress or the Chief
Executive. Hence, its final act, the 1973 Constitution, must have the same
category at the very least as the act of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and the 1973
Constitution should be eight (8) under Section 10 of Article VIII of the 1935
Constitution in relation to Section 9 of the Judiciary Act or Republic Act No.
296, as amended, or should be ten (10) under Section 2(2) of Article X of the
1973 Constitution. Should the required vote of eight (8) or ten (10), as the case
may be, for the declaration of invalidity or unconstitutionality be not achieved,
the 1973 Constitution must be deemed to be valid, in force and operative.
X the incumbent President proclaimed martial law to save the Republic from
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like
Thomas Jefferson, We swear "eternal hostility towards any form of tyranny
over the mind of man" as well as towards bigotry and intolerance, which are
anathema to a free spirit. But human rights and civil liberties under a
democratic or republican state are never absolute and never immune to
restrictions essential to the common weal. A civilized society cannot long
endure without peace and order, the maintenance of which is the primary
function of the government. Neither can civilized society survive without the
natural right to defend itself against all dangers that may destroy its life,
whether in the form of invasion from without or rebellion and subversion from
within. This is the first law of nature and ranks second to none in the hierarchy
of all values, whether human or governmental. Every citizen, who prides
himself in being a member or a civilized society under an established
government, impliedly submits to certain constraints on his freedom for the
general welfare and the preservation of the State itself, even as he reserves
to himself certain rights which constitute limitations on the powers of
government. But when there is an inevitable clash between an exertion of
governmental authority and the assertion of individual freedom, the exercise
of which freedom imperils the State and the civilized society to which the
individual belongs, there can be no alternative but to submit to the superior
right of the government to defend and preserve the State. In the language of
Mr. Justice Holmes often invoked by herein petitioners "when it comes
to a decision involving its (state life, the ordinary rights of individuals must yield
to what he (the President) deems the necessities of the moment. Public danger
warrants the substitution of executive process for judicial process. (See Keely
vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with
regard to killing men in the actual clash of arms. And we think it is obvious,
although it was disputed, that the same is true of temporary detention to
prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed.,
411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom
with order and security for all, that should be the shibboleth; for freedom cannot
be enjoyed in an environment of disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for his
reform program long before September 21, 1972, realized almost too late that
he was being deceived by his partymates as well as by the opposition, who
promised him cooperation, which promises were either offered as a bargaining
leverage to secure concessions from him or to delay the institution of the
needed reforms. The people have been victimized by such bargaining and
dilly-dallying. To vert a terrifying blood bath and the breakdown of the Republic,
being overrun by communists, secessionists and rebels by effecting the
desired reforms in order to eradicate the evils that plague our society, which
evils have been employed by the communists, the rebels and secessionists to
exhort the citizenry to rise against the government. By eliminating the evils,
the enemies of the Republic will be decimated. How many of the petitioners
and their counsels have been utilizing the rebels, secessionists and
communists for their own personal or political purposes and how many of them
are being used in turn by the aforesaid enemies of the State for their own
purposes?
If the petitioners are sincere in their expression of concern for the greater mass
of the populace, more than for their own selves, they should be willing to give
the incumbent Chief Executive a chance to implement the desired reforms.
The incumbent President assured the nation that he will govern within the
framework of the Constitution and if at any time, before normalcy is restored,
the people thru their Citizens' Assemblies, cease to believe in his leadership,
he will step down voluntarily from the Presidency. But if, as apprehended by
the petitioners, he abuses and brutalizes the people, then to the battlements
we must go to man the ramparts against tyranny. This, it is believed, he knows
only too well; because he is aware that he who rides the tiger will eventually
end inside the tiger's stomach. He who toys with revolution will be swallowed
by that same revolution. History is replete with examples of libertarians who
turned tyrants and were burned at stake or beheaded or hanged or guillotined
by the very people whom they at first championed and later deceived. The
most bloody of such mass executions by the wrath of a wronged people, was
the decapitation by guillotine of about 15,000 Frenchmen including the leaders
of the French revolution, like Robespierre, Danton, Desmoulins and Marat. He
is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents Executive Officers
from implementing the Constitution signed on November 30, 1972; in L-36165,
to compel respondents Gil Puyat and Jose J. Roy, President and President
Pro-Tempore, respectively, of the Senate under the 1935 Constitution, to
convene the Senate in regular session which should have started on January
22, 1973; to nullify Proclamation No. 1102 of the President, issued on January
17, 1973, which declared the ratification of the Constitution on November 30,
1972, by the Filipino people, through the barangays or Citizens Assemblies
established under Presidential Decree No. 86 issued on December 31, 1972,
which were empowered under Presidential Decree No. 86-A, issued on
January 5, 1973, to act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for the making of a
Constitution after the declaration of Martial Law on September 21, 1972.
2. The Convention was not empowered to incorporate certain provisions in the
1972 Constitution because they are highly unwise and objectionable and the
people were not sufficiently informed about them.
3. The President had no authority to create and empower the Citizens'
Assemblies to ratify the new Constitution at the referendum conducted in
connection therewith, as said assemblies were merely for consultative
purposes, and
4. The provisions of Article XV of the 1935 Constitution prescribing the manner
of amending the same were not duly observed.
The petitions were not given due course immediately but were referred to the
Solicitor General as counsel for the respondents for comment, with three
members of the Court, including the undersigned, voting to dismiss them
outright. The comments were considered motions to dismiss which were set
for hearing and extensively argued. Thereafter both parties submitted their
notes and memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the Motion to
Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond the competence of
this Court to decide, or is it justiciable and fit for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in accordance with
the amending process prescribed by Article XV of the 1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in by the Filipino
people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners
entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly
political and, therefore, not justiciable. I maintain that this Court should abstain
from assuming jurisdiction, but, instead, as an act of judicial statesmanship,
should dismiss the petitions. In resolving whether or not the question
presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary
so as to arrive at a logical conclusion. For after the acceptance of a new
Constitution and acquiescence therein by the people by putting it into practical
operation, any question regarding its validity should be foreclosed and all
debates on whether it was duly or lawfully ushered into existence as the
organic law of the state become political and not judicial in character.
The undisputed facts that led to the issuance of Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and
dissenting opinions in the Plebiscite cases decided on January 22, 1973, and
need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A, claiming that the ratification of the new Constitution
pursuant to the said decrees is invalid and of no effect. Presidential Decree
No. 86 organized the barangays or Citizens Assemblies composed of all
citizens at least fifteen years of age, and through these assemblies the
proposed 1972 Constitution was submitted to the people for ratification.
Proclamation No. 1102 of the President announced or declared the result of
the referendum or plebiscite conducted through the Citizens Assemblies, and
that 14,976,561 members thereof voted for the ratification of the new
Constitution and 743,869 voted against it. Petitioners assail these two acts of
the President as unauthorized and devoid of legal effect.
But looking through the veneer of judicial conformity with which the petitions
have been adroitly contrived, what is sought to be invalidated is the new
Constitution itself the very framework of the present Government since
January 17, 1973. The reason is obvious. The Presidential decrees set up the
means for the ratification and acceptance of the new Constitution and
Proclamation No. 1102 simply announced the result of the referendum or
plebiscite by the people through the Citizens Assemblies. The Government
under the new Constitution has been running on its tracks normally and
apparently without obstruction in the form of organized resistance capable of
jeopardizing its existence and disrupting its operation. Ultimately the issue is
whether the new Constitution may be set aside by this Court. But has it the
power and authority to assume such a stupendous task when the result of such
invalidation would be to subject this nation to divisive controversies that may
totally destroy the social order which the Government under the new
Constitution has been admirably protecting and promoting under Martial Law?
That the new Constitution has taken deep root and the people are happy and
contended with it is a living reality which the most articulate critics of the new
order cannot deny. 95 out of 108 members of the House of Representatives
have opted to serve in the interim National Assembly provided for under the
new Constitution. 15 out of 24 Senators have done likewise. The members of
the Congress did not meet anymore last January 22, 1973, not because they
were really prevented from so doing but because of no serious effort on their
parts to assert their offices under the 1935 Constitution. In brief, the Legislative
Department under the 1935 Constitution is a thing of the past. The Executive
Department has been fully reorganized; the appointments of key executive
officers including those of the Armed Forces were extended and they took an
oath to support and defend the new Constitution. The courts, except the
Supreme Court by reason of these cases, have administered justice under the
new constitution. All government offices have dealt with the public and
performed their functions according to the new Constitution and laws
promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution, how can
this Court justify its assumption of jurisdiction when no power has ... conferred
upon it the jurisdiction to declare the Constitution or any part thereof null and
void? It is the height of absurdity and impudence for a court to wage open war
against the organic act to which it owes its existence. The situation in which
this Court finds itself does not permit it to pass upon the question whether or
not the new Constitution has entered into force and has superseded the 1935
Constitution. If it declares that the present Constitution has not been validly
ratified, it has to uphold the 1935 Constitution as still the prevailing organic
law. The result would be too anomalous to describe, for then this Court would
have to declare that it is governed by one Constitution or the 1935 Constitution,
and the legislative and executive branches by another or the 1972
Constitution.
If it declares that the 1972 Constitution is now operative, how can it exercise
judicial discretion in these cases when it would have no other choice but to
uphold the new Constitution as against any other one? In the circumstances it
would be bereft of judicial attributes as the matter would then be not meet for
judicial determination, but one addressed to the sovereign power of the people
who have already spoken and delivered their mandate by accepting the
fundamental law on which the government of this Republic is now functioning.
To deny that the new Constitution has been accepted and actually is in
operation would be flying in the face of reason and pounding one's bare head
against a veritable stone wall or a heavily reinforced concrete, or simply
"kicking the deadly pricks" with one's bare foot in an effort to eliminate the
lethal points.
When a Constitution has been in operation for sometime, even without popular
ratification at that, submission of the people thereto by the organization of the
government provided therein and observance of its prescriptions by public
officers chosen thereunder, is indicative of approval. Courts should be slow in
nullifying a Constitution claimed to have been adopted not in accordance with
constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W.
522; Taylor vs Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34
F 204, 207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has been formed
and promulgated according to the forms of law. Great
interests have already arisen under it; important rights exist
by virtue of it; persons have been convicted of the highest
crimes known to the law, according to its provisions; the
political power of the government has in many ways
recognized it; and, under such circumstances, it is our duty to
treat and regard it as a valid constitution, and now the organic
law of our state. We need not consider the validity of the
amendments made after the convention reassembled. If the
 making of them was in excess of its power, yet as the entire
instrument has been recognized as valid in the manner
suggested, it would be equally an abuse of power by the
judiciary, and violative of the rights of the people, who can
and properly should remedy the matter, if not to their liking,
if it were to declare the instrument or a portion invalid, and
bring confusion and anarchy upon the state. (Emphasis
supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from entering upon such an
inquiry when applied to a new constitution, and not an amendment,
because the judicial power presupposes an established government,
and if the authority of that government is annulled and overthrown, the
power of its courts is annulled with it; therefore, if a state court should
enter upon such an inquiry, come to the conclusion that the
government under which it acted had been displaced by an opposing
government, it would cease to be a court, and it would be incapable of
pronouncing a judicial decision upon the question before it; but, if it
decides at all, it must necessarily affirm the existence of the
government under which it exercises its judicial powers. (Emphasis
supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed.
581, 598 (1849) where it was held:
Judicial power presupposes an established government capable of
enacting laws and enforcing their execution, and appointing judges to
expound and administer them. The acceptance of the judicial office is
a recognition of the authority of government from which it is derived.
And if the authority of the government is annulled and overthrown, the
power of its courts and other officers is annulled with it. And if a State
court should enter upon the inquiry proposed in this case, and should
come to conclusion that the government under which it acted had been
put aside and displaced by an opposing government it would cease to
be a court, and be incapable of pronouncing a judicial decision upon
the question it undertook to try. If it decides at all as a court, it
necessarily affirms the existence and authority of the government
under which it is exercising judicial power.
The foreign relations of the Republic of the Philippines have been normally
conducted on the basis of the new Constitution and no state with which we
maintain diplomatic relations has withdrawn its recognition of our government.
(For particulars about executive acts done under the new Constitution, see
pages 22-25 of the Comments of the Solicitor General, dated February 3,
1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees
Nos. 86 and 86-A by this Court would smack of plain political meddling which
is described by the United States Supreme Court as "entering a political
thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it would be
the part of wisdom for this Court to adopt the proper attitude towards political
upheavals and realize that the question before Us is political and not fit for
judicial determination. For a political question is one entrusted to the people
for judgment in their sovereign capacity (Taada vs. Cuenco, G.R. No. L-
10520, Feb. 28,1967; 100 Phil. 1101), or to a co-equal and coordinate branch
of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito,
78 Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No.
4638, May 8, 1931). A case involves a political question when there would be
"the impossibility of undertaking independent resolutions without expressing a
lack of respect due to coordinate branches of government", or when there is
"the potentiality of embarrassment from multifarious pronouncements by
various departments on one question."
To preserve the prestige and eminence that this Court has long enjoyed as the
"ultimate organ of the "Supreme Law of the Land" in that vast range of legal
problems often strongly entangled in popular feeling on which this Court must
pronounce", let us harken to the following admonition of Justice Frankfurter in
his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
The Court's authority possessed neither of the purse nor the sword
ultimately rests on sustained public confidence in its moral sanction.
Such feeling must be nourished by the Court's complete detachment,
in fact and appearance, from political entanglements and abstention
from injecting itself into the clash of political forces in political
settlement. ..." (Emphasis supplied)
The people have accepted and submitted to a Constitution to replace the 1935
Constitution. The new organic law is now in the plenitude of its efficacy and
vigor. We are now living under its aegis and protection and only the cynics will
deny this. This Court should not in the least attempt to act as a super-
legislature or a super-board of canvassers and sow confusion and discord
among our people by pontificating there was no valid ratification of the new
Constitution. The sober realization of its proper role and delicate function and
its consciousness of the limitations on its competence, especially situations
like this, are more in keeping with the preservation of our democratic tradition
than the blatant declamations of those who wish the Court to engage in their
brand of activism and would not mind plunging it into the whirlpool of passion
and emotion in an effort to capture the intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or not
the Constitution proposed by the Constitutional Convention of 1971 had been
ratified in accordance with the provisions of Article XV of the 1935 Constitution.
In the plebiscite cases, which were decided by this Court on January 22,
1973 1, I held the view that this issue could be properly resolved by this Court,
and that it was in the public interest that this Court should declare then whether
or not the proposed Constitution had been validly ratified. The majority of this
Court, however, was of the view that the issue was not squarely raised in those
cases, and so the Court, as a body, did make any categorical pronouncement
on the question of whether or not the Constitution proposed by the 1971
Convention was validly ratified. I was the only one who expressed the opinion
that the proposed Constitution was not validly ratified and therefore "it should
not be given force and effect."
The Court is now called upon to declare, and to inform the people of this
country, whether or not that proposed Constitution had been validly ratified
and had come into effect.
The Solicitor General, however, contends that this Court has no jurisdiction to
resolve the issue that we have mentioned because that issue is a political
question that cannot be decided by this Court. This contention by the Solicitor
General is untenable. A political question relates to "those questions which
under the Constitution are to be decided by the people in their sovereign
capacity or in regard to which full discretionary authority has been delegated
to the legislative, or to the executive, branch of the government. 2 The courts
have the power to determine whether the acts of the executive are authorized
by the Constitution and the laws whenever they are brought before the court
in a judicial proceeding. The judicial department of the government exercises
a sort of controlling, or rather restraining, power over the two other
departments of the government. Each of the three departments, within its
proper constitutional sphere, acts independently of the other, and restraint is
only placed on one department when that sphere is actually transcended.
While a court may not restrain the executive from committing an unlawful act,
it may, when the legality of such an act is brought before it in a judicial
proceeding, declare it to be void, the same as it may declare a law enacted by
the legislature to be unconstitutional. 3 It is a settled doctrine that 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 power of the people, acting through the
agency of the judiciary. It must be remembered that the people act through the
courts, as well as through the executive or the legislature. One department is
just as representative as the other, and judiciary is the department which is
charged with the special duty of determining the limitations which the law
places upon all official actions 4. In the case of Gonzales v. Commission on
Elections 5, this Court ruled that the issue as to whether or not a resolution of
Congress acting as a constituent assembly violates the Constitution is not a
political question and is therefore subject to judicial review. In the case
of Avelino v. Cuenco 6, this Court held that the exception to the rule that courts
will not interfere with a political question affecting another department is when
such political question involves an issue as to the construction and
interpretation of the provision of the constitution. And so, it has been held that
the question of whether a constitution shall be amended or not is a political
question which is not in the power of the court to decide, but whether or not
the constitution has been legally amended is a justiciable question. 7
My study on the subject of whether a question before the court is political or
judicial, based on decisions of the courts in the United States where, after
all, our constitutional system has been patterned to a large extent made me
arrive at the considered view that it is in the power of this Court, as the ultimate
interpreter of the Constitution, to determine the validity of the proposal, the
submission, and the ratification of any change in the Constitution. Ratification
or non-ratification of a constitutional amendment is a vital element in the
procedure to amend the constitution, and I believe that the Court can inquire
into, and decide on, the question of whether or not an amendment to the
constitution, as in the present cases, has been ratified in accordance with the
requirements prescribed in the Constitution that was amended. And so, in the
cases now before Us, I believe that the question of whether or not the
Constitution proposed by the 1971 Constitutional Convention had been validly
ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on
whether or not, the cases, before Us involve a political, or a judicial, question.
I fully concur with his conclusion that the question involved in these cases is
justiciable.
On the question now of whether or not the Constitution proposed by the 1971
Constitutional Convention has been validly ratified, I am reproducing herein
pertinent portions of my dissenting opinion in the plebiscite cases:
The ratification of the Constitution proposed by the 1971 Constitutional
Convention must be done in accordance with the provisions of Section
1, Article XV of the 1935 Constitution of the Philippines, which reads:
"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 the
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are
submitted to the people for their ratification."
It is in consonance with the abovequoted provision of the 1935
Constitution that on March 16, 1967, the Congress of the Philippines
Resolution No. 2 calling a convention to propose amendments to the
Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads
as follows:
"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.
It follows that from the very resolution of the Congress of the
Philippines which called for the 1971 Constitutional Convention, there
was a clear mandate that the amendments proposed by the 1971
Convention, in order to be valid and considered part of the
Constitution, must be approved by majority of the votes cast in an
election at which they are submitted to the people for the ratification
as provided in the Constitution.
This Court, in the case of Tolentino vs. Commission Elections, L-
35140, October 16, 1971 (41 SCRA 715), speaking through Mr.
Justice Barredo, said:
"The Constitutional Convention of 1971, as any other
convention of the same nature,owes its existence and 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 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 restraint and omnipotent all wise, and it 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 ... ."
xxx xxx xxx
"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 1 of Article XV."
In Proclamation No. 1102, issued on January 17, 1973, the President
of the Philippines certified that as a result of the voting before the
barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as
against 743,869 who voted for its rejection, and on the basis of the
overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines, the President proclaimed that
the Constitution proposed by the 1971 Convention has been ratified
and has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that
the provisions of Section 1 of Article XV of the Constitution of 1935
were not complied with. It is not necessary that evidence be produced
before this Court to show that no elections were held in accordance
with the provisions of the Election Code. Proclamation No. 1102
unequivocally states that the proposed Constitution of 1972 was voted
upon by the barangays. It is very clear, therefore, that the voting held
in these barangays is not the election contemplated in the provisions
of Section 1, Article XV, of the 1935 Constitution. The election
contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the
qualified and registered voters of the country would cast their votes,
where official ballots prepared for the purpose are used, where the
voters would prepare their ballots in secret inside the voting booths in
the polling places established in the different election precincts
throughout the country, where the election is conducted by election
inspectors duly appointed in accordance with the election law, where
the votes are canvassed and reported in a manner provided for in the
election law. It was this kind of election that was held on May 14, 1935,
when the Constitution of 1935 was ratified; on April 30, 1937, when
the amendment to the Constitution providing for Women's Suffrage
was ratified; on June 18, 1940, when the 1940 Amendments to the
Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14,
1967 when the amendments to the Constitution to increase the
number of Members of the House of Representatives and to allow the
Members of Congress to run in the elections for Delegates to the
Constitutional Convention of 1971 were rejected.
I cannot see any valid reason why the practice or procedure in the
past, in implementing the constitutional provision requiring the holding,
of an election to ratify or reject an amendment to the Constitution, has
not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines cannot by decree
order the ratification of the proposed 1972 Constitution thru a voting in
the barangays and make said result the basis for proclaiming the
ratification of the proposed constitution. It is very clear, to me, that
Proclamation No. 1102 was issued in complete disregard or in
violation, of the provisions of Section 1 of Article X of the 1935
Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as
to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, 14,298,814 members of the barangays
answered that there was no need for a plebiscite but that the vote of
the barangays should be considered a vote in a plebiscite. It would
thus appear that the barangays assumed the power to determine
whether a plebiscite as ordained in the Constitution be held or not.
Indeed, the provision of Section 1, Article XV of the Constitution was
completely disregarded.
The affirmative votes cast in the barangays are not the votes
contemplated in Section 1 of Article XV of the 1935 Constitution. The
votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
"An election is the embodiment of the popular will, the
expression of the sovereign power of the people. In common
parlance, an election is the act of casting and receiving the
ballots, counting them, and making the return." (Hontiveros
vs. Altavas, 24 Phil. 632, 637).
"Election" implies a choice by an electoral body at the time
and substantially in the manner and with the safeguards
provided by law with respect to some question or issue. (Leffel
v. Brown, Com. P1., 159 N.E. 2d 807, 808 cited in 29 C.J.S.
13 at footnote 6.5).
"... the statutory method whereby qualified voters or electors
pass on various public matters submitted to them the
election of officers, national, state, county, township the
passing on various other questions submitted for their
determination." (29 C.J.S. 13, citing Iowa-Illinois Gas & Elec.
Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358).
"Election" is expression of choice by voters of body politic.
(Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words
and Phrases, Permanent Edition, p. 234).
"The right to vote may be exercised only on compliance with
such statutory requirements as have been set by the
legislature." (People ex rel. Rago v. Lipsky, 63 N.E. 2d 642,
327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11
Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied).
In this connection I herein quote the pertinent provisions of the
Election Code of 1971:
"Sec. 2. Applicability of this Act. All elections of public officers
except barrio officials and plebiscites shall be conducted in the
manner provided by this Code."
"Sec 99. Necessity of registration to be entitled to vote. In order that
a qualified voter may vote in any regular or special election or in any
plebiscite, he must be registered in the permanent list of voters for the
city, municipality or municipal district in which he resides: Provided,
that no person shall register more than once without first applying for
cancellation of his previous registration." (Emphasis supplied).
(Please see also Sections 100-102, Election Code of 1971, R.A. No.
6388)
It is stated in Proclamation No. 1102 that the voting was done by the
members of citizens assemblies who are 15 years of age or over.
Under the provision of Section I of Article V of the 1935 Constitution,
the age requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the
barangays, except in very few instances, was done by the raising of
hands by the persons indiscriminately gathered to participate in the
voting, where even children below 15 years of age were included. This
is a matter of common observation, or of common knowledge, which
the Court may take judicial notice of. To consider the votes in the
barangays as expressive of the popular will and use them as the basis
in declaring whether a Constitution is ratified or rejected is to resort to
a voting by demonstrations, which is would mean the rule of the crowd,
which is only one degree higher than the rule by the mob. Certainly,
so important a question as to whether the Constitution, which is the
supreme law of the land, should be ratified or not, must not be decided
by simply gathering people and asking them to raise their hands in
answer to the question of whether the vote for or against a proposed
Constitution. The election as provided by law should be strictly
observed in determining the will of the sovereign people in a
democracy. In our Republic, the will of the people must be expressed
through the ballot in a manner that is provided by law.
It is said that in a democracy, the will of the people is the supreme law.
Indeed, the people are sovereign, but the will of the people must be
expressed in a manner as the law and the demands a well-ordered
society require. The rule of law must prevail even over the apparent
will of the majority of the people, if that will had not been expressed,
or obtained, in accordance with the law. Under the rule of law, public
questions must be decided in accordance with the Constitution and
the law. This is specially true in the case of adoption of a constitution
or in the ratification of an amendment to the Constitution.
The following citations are, to me, very relevant in the effort to
determine whether the proposed Constitution of 1972 had been validly
ratified, or not:
"When it is said that "the people" have the right to alter or
amend the constitution, it must not be understood that term
necessarily includes all the inhabitants of the state. Since the
question of the adoption or rejection of a proposed new
constitution or constitutional amendment must be answered a
vote, the determination of it rests with those who, by existing
constitution, are accorded the right of suffrage. But the
qualified electors must be understood in this, as in many other
cases, as representing those who have not the right to
participate in the ballot. If a constitution should be abrogated
and a new one adopted, by the whole mass of people in a
state acting through representatives not chosen by the
"people" in political sense of the term, but by the general body
of the populace, the movement would be extra-legal." (BIack's
Constitutional Law, Second Edition, pp. 47-48).
"The theory of our political system is that the ultimate
sovereignty is in the people, from whom springs all legitimate
authority. The people of the Union created a national
constitution, and conferred upon it powers of sovereignty on
certain subjects, and the people of each State created a State
government, to exercise the remaining powers of sovereignty
so far as they were disposed to allow them to be exercised at
all. By the constitution which they establish, they not only tie
up the hands of their official agencies, but their own hands as
well; and neither the officers of the State, nor the whole people
as an aggregate body, are at liberty to take action in
opposition to this fundamental law." (Cooley's Constitutional
Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v. Jones,
3 So. 2d. 761, 782).
"The theory that a favorable vote by the electorate, however
unanimous, on a proposal to amend a constitution, may cure,
render innocuous, all or any antecedent failures to observe
commands of that Constitution in respect of the formulation or
submission of proposed amendments thereto, does not
prevail in Alabama, where the doctrine of the stated theory
was denied, in obvious effect, by the pronouncement 60 years
ago of broad, wholesome constitutional principles in Collier v.
Frierson, supra, as quoted in the original opinion, ante. The
people themselves are bound by the Constitution; and, being
so bound, are powerless, whatever their numbers, to change
or thwart its mandates, except through the peaceful means of
a constitutional convention, or of an amendment according to
the mode therein prescribed, or through the exertion of the
original right of revolution. "The Constitution may be set aside
by revolution, but it can only be amended in the way it
provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky.
783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et al., 87 So.
375, 385, 387, On Rehearing).
"The fact that a majority voted for the amendment, unless the
vote was taken as provided by the Constitution, is not
sufficient to make a change in that instrument. Whether a
proposed amendment has been legally adopted is a judicial
question, for the court must uphold and enforce the
Constitution as written until it is amended in the way which it
provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25
L.R.A. 560;McConaughty v. State, 106 Minn. 409, 119 N.W.
408; Oakland Paving Company v. Hilton, 69 Cal. 499, 11 Pac.
3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St.
 Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99,
104).
"Provisions of a constitution regulating its own amendment, ...
are not merely directory, but are mandatory; and a strict
observance of every substantial mandatory; and a strict
observance of every substantial requirement is essential to
the validity of the proposed amendment. These provisions are
as binding on the people as on the legislature, and the former
are powerless by vote of acceptance to give legal sanction to
an amendment the submission of which was made in
disregard of the limitations contained in the constitution." (16
C.J.S. 35-36. cited in Graham v. Jones, 3 So. 2d 761, 782).
"It is said that chaos and confusion in the government affairs
of the State will result from the Court's action in declaring the
proposed constitutional amendment void. This statement is
grossly and manifestly inaccurate. If confusion and chaos
should ensue, it will not be due to the action of the Court but
will be the result of the failure of the drafters joint resolution to
observe, follow and obey the plain essential provisions of the
Constitution. Furthermore, to say that, the Court disregards its
sworn duty to enforce the Constitution, chaos and confusion
will result, is an inherently weak argument in favor of the
alleged constitutionality of the proposed amendment. It is
obvious that, if the Court were to countenance the violations
of the sacramental provisions Constitution, those who would
thereafter desire to violate it disregard its clear mandatory
provisions would resort to the scheme of involving and
confusing the affairs of the State then simply tell the Court that
it was powerless to exercise one of its primary functions by
rendering the proper decree to make the Constitution
effective." (Graham v. Jones, 3 So. 2d. 761, 793-794).
In our jurisprudence I find an instance where this Court did not allow
the will of the majority to prevail, because the requirements of the law
were not complied with. In the case of Monsale v. Nico, 83 Phil. 758,
Monsale and Nico were both candidates for the office of Municipal
Mayor of Miagao, Iloilo, in the elections of November 11, 1947.
Monsale had duly filed his certificate of candidacy before the
expiration of the period for the filing of the same. However, on October
10, 1947, after the period for the filing of the certificate of candidacy,
Monsale withdrew his certificate of candidacy. But on November 7,
1947 Monsale attempted to revive his certificate of candidacy by
withdrawing the withdrawal of certificate of candidacy. The
Commission on Elections, November 8, 1947, ruled that Monsale
could no longer be a candidate. Monsale nevertheless proceeded with
his candidacy. The boards of inspectors in Miagao, however, did not
count the votes cast for Monsale upon the ground that the votes cast
for him were stray votes, because he was considered as having no
certificate of candidacy. On the other hand, the boards of inspectors
credited Nico with 2,291 votes, and Nico was proclaimed elected.
Monsale filed a protest against the election of Nico in the Court of First
Instance of Iloilo. In the count of the ballots during the proceedings in
the trial court, it appeared that Monsale had obtained 2,877 votes
while Nico obtained 2,276 votes, or a margin of 601 votes in favor of
Monsale. The Court of First Instance of Iloilo decided the election
protest in favor of Monsale. Upon appeal by Nico, this Court reversed
the decision of the lower court. This Court declared that because
Monsale withdrew his certificate of candidacy, his attempt to revive it
by withdrawing his withdrawal of his certificate of candidacy did not
restore the effectiveness of his certificate of candidacy, and this Court
declared Nico the winner in spite of the fact that Monsale had obtained
more votes than he.
We have cited this Monsale case to show that the will of the majority
of the voters would not be given effect, as declared by this Court, if
certain legal requirements have not been complied with in order to
render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in
the citizens assemblies (barangays) is not the election that is provided
for in the 1935 Constitution for the ratification of the amendment to the
Constitution, the affirmative votes cast in those assemblies can not be
made the basis for declaring the ratification of the proposed 1972
Constitution, in spite of the fact that it was reported that 14,976,561
members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in
accordance with the provisions of Section 1 of Article XV of the 1935
Constitution of the Philippines. The rule of law mast be upheld.
My last observation: One of the valid grounds against the holding of
the plebiscite on January 15, 1973, as provided in Presidential Decree
No. 73, is that there is no freedom on the part of the people to exercise
their right of choice because of the existence of martial law in our
country. The same ground holds true as regards to the voting of the
barangays on January 10 to 15, 1973. More so, because by General
Order No. 20, issued on January 7, 1973, the President of the
Philippines ordered "that the provisions of Section 3 of Presidential
Decree No. 73 in so far as they allow free public discussion of the
proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the
 purpose of free and open debate on the proposed constitution, be
suspended in the meantime." It is, therefore, my view that voting in the
barangays on January 10, 1973 was not free, and so this is one added
reason why the results of the voting in the barangays should not be
made the basis for proclamation of the ratification of the proposed
Constitution.
It is my view, therefore, that Proclamation No. 1102 repugnant to the
1935 Constitution, and so it is invalid, and should not be given effect.
The Constitution of 1972 proposed by the 1971 Constitutional
Convention should be considered as not yet ratified by the people of
this Republic, and so it should not be given force and effect.
It is urged by the Solicitor General, however, that the voting in the citizens
assemblies was a substantial compliance with the provisions of Article XV of
the 1935 Constitution. The Solicitor General maintains that the primary thrust
of the provision of Article XV of the 1935 Constitution is that "to be valid,
amendments must gain the approval of the majority recognition of the
democratic postulate that sovereign resides in the people." It is not disputed
that in a democratic sovereignty resides in the people. But the
term "people" must be understood in its constitutional meaning, and they are
"those persons who are permitted by the Constitution to exercise the elective
franchise." 8 Thus, in Section 2 of Article VII of the 1935 Constitution, it is
provided that "the President shall hold his office during a term of four years
and, together with the Vice-President chosen for the same term, shall be
elected by direct vote of the people..." Certainly under that constitutional
provision, the "people" who elect directly the President and the Vice-President
are no other than the persons who, under the provisions of the same
Constitution, are granted the right to vote. In like manner the provision in
Section 1 of Article II of the 1935 Constitution which says "Sovereignty resides
in the peopleand all government authority emanates from them", the "people"
who exercise the sovereign power are no other than the persons who have the
right to vote under the Constitution. In the case of Garchitorena vs. Crescini 9,
this Court, speaking through Mr. Justice Johnson, said, "In democracies, the
people, combined, represent the sovereign power of the State. Their sovereign
authority is expressed through the ballot, of the qualified voters, in duly
appointed elections held from time to time, by means of which they choose
their officials for definite fixed periods, and to whom they entrust, for the time
being, as their representatives, the exercise of the powers of government." In
the case of Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice
Laurel, said, "As long as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form devised, must
continue to be the means by which the great reservoir of power must be
emptied into the receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal.
Republicanism, in so far as it implies the adoption of a representative type of
government, necessarily points to the enfranchised citizen as a particle of
popular sovereignty and as the ultimate source of the established authority."
And in the case of Abanil v. Justice of the Peace of Bacolod, 11 this Court said:
"In the scheme of our present republican government, the people are allowed
to have a voice therein through the instrumentality of suffrageto be availed of
by those possessing certain prescribed qualifications. The people, in clothing
a citizen with the elective franchise for the purpose of securing a consistent
and perpetual administration of the government they ordain, charge him with
the performance of a duty in the nature of a public trust, and in that
respect constitute him a representative of the whole people. This duty requires
that the privilege thus bestowed exclusively for the benefit of the citizen or
class of citizens professing it, but in good faith and with an intelligent zeal for
the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S.
588)..." There is no question, therefore, that when we talk of sovereign people,
what is meant are the people who act through the duly qualified and registered
voters who vote during an election that is held as provided in the Constitution
or in the law.
The term "election" as used in Section 1 of Article XV of the 1935 Constitution
should be construed along with the term "election" as used in the Provisions
of Section 4 of the Philippine Independence Act of the Congress of the United
States, popularly known as the Tydings-McDuffie Law (Public Act No. 127).
Said Section 4 of the Tydings-McDuffie Law provides as follows:
Section 4. After the President of the United States certified that the
constitution conforms with the provisions of this act, it shall be
submitted to the people of the Philippine Islands for their ratification or
rejection at an election to he held within months after the date of such
certification, on a date to be fixed by the Philippine Legislature at which
election, the qualified voters of the Philippine Islands shall have an
opportunity to vote directly or against the proposed constitution and
ordinances append thereto. Such election shall be held in such
manner as may prescribed by the Philippine Legislature to which the
return of the election shall be made. The Philippine Legislature shall
certify the result to the Governor-General of the Philippine Islands,
together with a statement of the votes cast, and a copy of said
constitution ordinances. If a majority of the votes cast shall be for the
constitution, such vote shall be deemed an expression of the will of
the people of the Philippine Independence, and the Governor-General
shall, within thirty days after receipt of the certification from the
Philippine Legislature, issue a proclamation for the election of officers
of the government of the Commonwealth of the Philippine Islands
provided for in the Constitution...
It can safely be said, therefore, that when the framers of the 1935 Constitution
used, the word "election" in Section I Article XV of the 1935 Constitution they
had no other idea in mind except the elections that were periodically held in
the Philippines for the choice of public officials prior to the drafting of the 1935
Constitution, and also the "election" mentioned in the Independence Act at
which "the qualified voters of the Philippine Islands shall have an opportunity
to vote directly for or against the proposed constitution..." It is but logical to
expect that the framers of the 1935 Constitution would provide a mode of
ratifying an amendment to that Constitution similar to the mode of ratifying the
original Constitution itself.
It is clear therefore, that the ratification or any amendment to the 1935
Constitution could only be done by holding an election, as the term "election"
was understood, and practiced, when the 1935 Constitution as drafted. The
alleged referendum in the citizens assemblies participated in by persons
aged 15 years or more, regardless of whether they were qualified voters or
not, voting by raising their hands, and the results of the voting reported by the
barrio or ward captain, to the municipal mayor, who in turn submitted the report
to the provincial Governor, and the latter forwarding the reports to the
Department of Local Governments, all without the intervention of the
Commission on Elections which is the constitutional body which has exclusive
charge of the enforcement and administration of all laws, relative to the
conduct of elections was not only a non-substantial compliance with the
provisions of Section 1 of Article XV of the 1935 Constitution but a downright
violation of said constitutional provision. It would be indulging in sophistry to
maintain that the voting in the citizens assemblies amounted to a substantial
compliance with the requirements prescribed in Section 1 of Article XV of the
1935 Constitution.
It is further contended by the Solicitor General, that even if the Constitution
proposed by the 1971 Constitutional Convention was not ratified in accordance
with the provisions of Section 1 of Article XV of the 1935 Constitution, the fact
is that after the President of the Philippines had issued Proclamation No. 1102
declaring that the said proposed Constitution "has been ratified by
overwhelming majority of all the votes cast by the members of all the
barangays (citizens assemblies) throughout the Philippines and had thereby
come into effect" the people have accepted the new Constitution. What
appears to me, however, is that practically it is only the officials and employees
under the executive department of the Government who have been performing
their duties apparently in observance of the provisions of the new Constitution.
It could not be otherwise, because the President of the Philippines, who is the
head of the executive department, had proclaimed that the new Constitution
had come into effect, and his office had taken the steps to implement the
provisions of the new Constitution. True it is, that some 92 members of the
House of Representatives and 15 members of the Senate, of the Congress of
the Philippines had expressed their option to serve in the interim National
Assembly that is provided for in Section 2 of Article XVII of the proposed
Constitution. It must be noted, however, that of the 15 senators who expressed
their option to serve in the interim National Assembly only one them took his
oath of office; and of the 92 members of the House of Representatives who
opted to serve in the interim National Assembly, only 22 took their oath of
office. The fact that only one Senator out of 24, and only 22 Representative
out of 110, took their oath of office, is an indication that only a small portion of
the members of Congress had manifested the acceptance of the new
Constitution. It is in the taking of the oath of office where the affiant says that
he swears to "support and defend the Constitution" that the acceptance of the
Constitution is made manifest. I agree with counsel petitioners in L-36165
(Gerardo Roxas, et al. v. Alejandro Melchor, et al.) when he said that the
members of Congress who opted to serve in the interim National Assembly did
only ex abundante cautela, or by way of a precaution, making sure, that in the
event the new Constitution becomes definitely effective and the interim
National Assembly convened, they can participate in legislative work in the
capacity as duly elected representatives of the people, which otherwise they
could not do if they did not manifest their option to serve, and that option had
to be made within 30 day from January 17, 1973, the date when Proclamation
No. 110 was issued. Of course, if the proposed Constitution does not become
effective, they continue to be members of Congress under the 1935
Constitution. Let it be considered that the members of the House of
Representatives were elected in 1969 to serve a term which will yet expire on
December 31, 1973. Whereas, of the Senators who opted to serve in the
interim National Assembly, the term of some of them will yet expire on
December 31, 1973, some on December 31, 1975, and the rest on December
31, 1977. Let if be noted that 9 Senators did not opt to serve in the interim
National Assembly, and 18 members of the House of Representatives also did
not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new Constitution. I
cannot, in conscience, accept the reported affirmative votes in the citizens
assemblies as a true and correct expression by the people of their approval,
or acceptance, of the proposed Constitution. I have my serious doubts
regarding the freedom of the people to express their views regarding the
proposed Constitution during the voting in the citizens assemblies, and I have
also my serious doubts regarding the truthfulness and accuracy of the reports
of the voting in the citizens assemblies. This doubt has been engendered in
my mind after a careful examination and study of the records of these cases,
particularly with respect to the reports of the voting in the citizens assemblies.
Perhaps, it may be said that the people, or the inhabitants of this country, have
acquiesced to the new Constitution, in the sense that they have continued to
live peacefully and orderly under the government that has been existing since
January 17, 1973 when it was proclaimed that the new Constitution came into
effect. But what could the people do? In the same way that the people have
lived under martial law since September 23, 1972, they also have to live under
the government as it now exists, and as it has existed since the declaration of
martial law on September 21, 1972, regardless of what Constitution is
operative whether it is the 1935 Constitution or the new Constitution.
Indeed, there is nothing that the people can do under the circumstances
actually prevailing in our country today circumstances, known to all, and
which I do not consider necessary to state in this opinion. I cannot agree,
therefore, with my worthy colleagues in the Court who hold the view that the
people have accepted the new Constitution, and that because the people have
accepted it, the new Constitution should be considered as in force, regardless
of the fact that it was not ratified in accordance with the provisions of Section
1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971 Constitutional
Convention has not come into effect. I do not say, however, that the proposed
Constitution is invalid. To me, the validity of the proposed Constitution is not
in issue in the cases before Us. What the petitioners assail is not the validity
of the proposed Constitution but the validity of Presidential Proclamation No.
1102 which declares the proposed Constitution as having been ratified and
has come into effect. It being my considered view that the ratification of the
proposed Constitution, as proclaimed in Proclamation No. 1102, is not in
accordance with the provisions of Section 1 of Article XV, of the 1935
Constitution, I hold that Proclamation No. 1102 is invalid and should not be
given force and effect. Their proposed Constitution, therefore, should be
considered as not yet validly ratified, and so it is not in force. The proposed
Constitution may still be submitted to a plebiscite in conformity with Section 1
of Article XV of the 1935 Constitution. Incidentally, I must state that the
Constitution is still in force, and this Court is still functioning under the 1935
Constitution.
I sincerely believe that the proposed Constitution may still be submitted to the
people in an election or plebiscite held in accordance with the provisions of
Section 1 of Article XV of the 1935 Constitution. In fact, as we have adverted
to in this opinion, this was the mandate of Congress when, on March 16, 1967,
it passed Resolution No. 2 calling a convention to propose amendments to the
1935 Constitution. The Court may take judicial notice of the fact that the
President of the Philippines has reassured the nation that the government of
our Republic since the declaration of martial law is not a revolutionary
government, and that he has been acting all the way in consonance with his
powers under the Constitution. The people of this Republic has reason to be
happy because, according to the President, we still have a constitutional
government. It being my view that the 1935 Constitution is still in force, I
believe Congress may still convene and pass a law calling for an election at
which the Constitution proposed by the 1971 Constitutional Convention will be
submitted to the people their ratification or rejection. A plebiscite called
pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to
our people that we still have in our country the Rule of Law and that the
democratic system of government that has been implanted in our country by
the Americans, and which has become part of our social and political fabric, is
still a reality.
The views that I have expressed in this opinion are inspired by a desire on my
part to bring about stability in democratic and constitutional system in our
country. I feel that if this Court would give its imprimatur to the ratification of
the proposed Constitution, as announced in Proclamation No. 1102, it being
very clear that the provisions of Section 1 of Article XV of the 1935 Constitution
had not been complied with, We will be opening the gates for a similar
disregard of the Constitution in the future. What I mean is that if this Court now
declares that a new Constitution is now in force because the members of the
citizens assemblies had approved the said new Constitution, although that
approval was not in accordance with the procedure and the requirements
prescribed in the 1935 Constitution, it can happen again in some future time
that some amendments to the Constitution may be adopted, even in a manner
contrary to the existing Constitution and the law, and then said proposed
amendment is submitted to the people in any manner and what will matter is
that a basis is claimed that there was approval by the people. There will not
be stability in our constitutional system, and necessarily no stability in our
government. As a member of this Court I only wish to contribute my humble
efforts to prevent the happening of such a situation in the future.
It appearing to me that the announced ratification of the proposed Constitution
through the voting in the citizens assemblies is a clear violation of the 1935
Constitution, what I say in this opinion is simply an endeavor on my part to be
true to my oath of office to defend and support the 1935 Constitution. I am
inspired by what the great jurist and statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers of the purity and
sanctity of our Constitution, and the protection and vindication of
popular rights will be safe and secure in their reverential guardianship.
I only wish to help prevent, if I can, democracy and the liberties of our people
from vanishing in our land, because, as Justice George Sutherland of the U.
S. Supreme Court said:
(t)he saddest epitaph which can be carved in memory of a vanished
liberty is that it was lost because its possessors failed to stretch forth
a saving hand while yet there was time.
I concur fully with the personal views expressed by the Chief Justice in the
opinion that he has written in these cases. Along with him, I vote to deny the
motion to dismiss and give due course to the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such transcendental
significance is likely to confront this Court in the near or distant future as that
posed by these petitions. For while the specific substantive issue is the validity
of Presidential Proclamation No. 1102, an adverse judgment may be fraught
with consequences that, to say the least, are far-reaching in its implications.
As stressed by respondents, "what petitioners really seek to invalidate is the
new Constitution." 1 Strict accuracy would of course qualify such statement that
what is in dispute, as noted in the opinion of the Chief Justice, goes only as far
as the validity of its ratification. It could very well be though that the ultimate
outcome is not confined within such limit, and this is not to deny that under its
aegis, there have been marked gains in the social and economic sphere, but
given the premise of continuity in a regime under a fundamental law, which
itself explicitly recognizes the need for change and the process for bringing it
about, 2 it seems to me that the more appropriate course is this Court to give
heed to the plea of petitioners that the most serious attention be paid to their
submission that the challenged executive act fails to meet the test of
constitutionality. Under the circumstances, with regret and with due respect for
the opinion of my brethren, I must perforce dissent. It would follow therefore
that the legal position taken by the Chief Justice as set forth with his usual
lucidity and thoroughness has, on the whole, my concurrence, subject, of
course, to reservations insofar as it contains views and nuances to which I
have in the past expressed doubts. Nonetheless, I feel that a brief expression
of the reasons for the stand I take would not be amiss.
In coping with its responsibility arising from the function of judicial review, this
Court is not expected to be an oracle given to utterances of eternal verities,
but certainly it is more than just a keen but passive observer of the
contemporary scene. It is, by virtue of its role under the separation of powers
concept, involved not necessarily as a participant in the formation of
government policy, but as an arbiter of its legality. Even then, there is realism
in what Lerner did say about the American Supreme Court as "the focal point
of a set of dynamic forces which [could play] havoc with the landmarks of the
American state and determine the power configuration of the day." 3 That is
why there is this caveat. In the United States as here, the exercise of the power
of judicial review is conditioned on the necessity that the decision of a case or
controversy before it so requires. To repeat, the Justices of the highest tribunal
are not, as Justice Frankfurter made clear, "architects of policy. They can
nullify the policy of others, they are incapable of fashioning their own solutions
for social problems." 4 Nonetheless, as was stressed by Professors Black 5 and
Murphy, 6 a Supreme Court by the conclusion it reaches and the decision it
renders does not merely check the coordinate branches, but also by its
approval stamps with legitimacy the action taken. Thus in affirming
constitutional supremacy, the political departments could seek the aid of the
judiciary. For the assent it gives to what has been done conduces to its support
in a regime where the rule of law holds sway. In discharging such a role, this
Court must necessarily take in account not only what the exigent needs of the
present demand but what may lie ahead in the unexplored and unknown vistas
of the future. It must guard against the pitfall of lack of understanding of the
dominant forces at work to seek a better life for all, especially those suffering
from the pangs of poverty and disease, by a blind determination to adhere to
the status quo. It would be tragic, and a clear case of its being recreant to its
trust, if the suspicion can with reason be entertained that its approach amounts
merely to a militant vigilantism that is violently opposed to any form of social
change. It follows then that it does not suffice that recourse be had only to what
passes for scholarship in the law that could be marred by inapplicable erudition
and narrow legalism. Even with due recognition, such factors, however, I
cannot, for reasons to be set more lengthily and in the light of the opinion of
the Chief Justice, reach the same result as the majority of my brethren. For, in
the last analysis, it is my firm conviction that the institution of judicial review
speaks too clearly for the point to be missed that official action, even with due
allowance made for the good faith that invariably inspires the step taken, has
to face the gauntlet of a court suit whenever there is a proper case with the
appropriate parties.
1. Respondents are acting in the soundest constitutional tradition when, at the
outset, they would seek a dismissal of these petitions. For them, the question
raised is political and thus beyond the jurisdiction of this Court. Such an
approach cannot be indicted for unorthodoxy. It is implicit in the concept of the
rule of law that rights belong to the people and the government possesses
powers only. Essentially then, unless such an authority may either be
predicated on express or implied grant in the Constitution or the statutes, an
exercise thereof cannot survive an inquiry as to its validity. Respondents
through Solicitor-General Mendoza would deny our competence to proceed
further. It is their view, vigorously pressed and plausibly asserted, that since
what is involved is not merely the effectivity of an amendment but the actual
coming into effect of a new constitution, the matter is not justiciable. The
immediate reaction is that such a contention is to be tested in the light of the
fundamental doctrine of separation of powers that it is not only the function but
the solemn duty of the judiciary to determine what the law is and to apply it in
cases and controversies that call for decision. 7 Since the Constitution pre-
eminently occupies the highest rung in the hierarchy of legal norms, it is in the
judiciary, ultimately this Tribunal, that such a responsibility is vested. With the
1935 Constitution containing, as above noted, an explicit article on the subject
of amendments, it would follow that the presumption to be indulged in is that
the question of whether there has been deference to its terms is for this Court
to pass upon. What is more, the Gonzales, 8 Tolentino 9 and Planas 10 cases
speak unequivocally to that effect. Nor is it a valid objection to this conclusion
that what was involved in those cases was the legality of the submission and
not ratification, for from the very language of the controlling article, the two vital
steps are proposal and ratification, which as pointed out in Dillon v.
Gloss, 11 "cannot be treated as unrelated acts, but as succeeding steps in a
single endeavor." 12Once an aspect thereof is viewed as judicial, there would
be no justification for considering the rest as devoid of that character. It would
be for me then an indefensible retreat, deriving no justification from
circumstances of weight and gravity, if this Court were to accede to what is
sought by respondents and rule that the question before us is political.
On this point, it may not be inappropriate to refer to a separate opinion of mine
in Lansang v. Garcia. 13 Thus: "The term has been made applicable to
controversies clearly non-judicial and therefore beyond its jurisdiction or to an
issue involved in a case appropriately subject to its cognizance, as to which
there has been a prior legislative or executive determination to which
deference must be paid. It has likewise been employed loosely to characterize
a suit where the party proceeded against is the President or Congress, or any
branch thereof. If to be delimited with accuracy, "political questions" should
refer to such as would under the Constitution be decided by the people in their
sovereign capacity or in regard to full discretionary authority is vested either in
the President or Congress. It is thus beyond the competence of the judiciary
to pass upon. Unless clearly falling within the formulation, the decision reached
by the political branches whether in the form of a congressional act or an
executive order could be tested in court. Where private rights are affected, the
judiciary has no choice but to look into its validity. It is not to be lost sight of
that such a power comes into play if there be an appropriate proceeding that
may be filed only after each coordinate branch has acted. Even when the
Presidency or Congress possesses plenary powers, its improvident exercise
or the abuse thereof, if shown, may give rise to a justiciable controversy. For
the constitutional grant of authority is usually unrestricted. There are limits to
what may be done and how it is to be accomplished. Necessarily then, the
courts in the proper exercise of judicial review could inquire into the question
of whether or not either of the two coordinate branches has adhered to what
is laid down by the Constitution. The question thus posed is judicial rather than
political." 14 The view entertained by Professor Dodd is not too dissimilar. For
him such a term "is employed to designate certain types of functions
committed to the political organs of government (the legislative and executive
departments, or either of them) and not subject to judicial
investigation." 15 After a thorough study of American judicial decisions, both
federal and state, he could conclude: "The field of judicial nonenforceability is
important, but is not large when contrasted with the whole body of written
constitutional texts. The exceptions from judicial enforceability fall primarily
within the field of public or governmental interests." 16 Nor was Professor
Weston's formulation any different. As was expressed by him: "Judicial
questions, in what may be thought the more useful sense, are those which the
sovereign has set to be decided in the courts. Political questions, similarly, are
those which the sovereign has entrusted to the so-called political departments
of government or has reserved to be settled by its own extra-governmental
action." 17 What appears undeniable then both from the standpoint of
Philippine as well as American decisions is the care and circumspection
required before the conclusion is warranted that the matter at issue is beyond
judicial cognizance, a political question being raised.
2. The submission of respondents on this subject of political question,
admittedly one of complexity and importance, deserves to be pursued further.
They would derive much aid and comfort from the writings of both Professor
Bickel 18 of Yale and Professor Freund 19 of Harvard, both of whom in turn are
unabashed admirers of Justice Brandeis. Whatever be the merit inherent in
their lack of enthusiasm for a more active and positive role that must be played
by the United States Supreme Court in constitutional litigation, it must be
judged in the light of our own history. It cannot be denied that from the well
nigh four decades of constitutionalism in the Philippines, even discounting an
almost similar period of time dating from the inception of American sovereignty,
there has sprung a tradition of what has been aptly termed as judicial activism.
Such an approach could be traced to the valedictory address before the 1935
Constitutional Convention of Claro M. Recto. He spoke of the trust reposed in
the judiciary in these words: "It is one of the paradoxes of democracy that the
people at times place more confidence in instrumentalities of the State other
than those directly chosen by them for the exercise of their sovereignty." 20 It
would thus appear that even then this Court was expected not to assume an
attitude of timidity and hesitancy when a constitutional question is posed.
There was the assumption of course that it would face up to such a task,
without regard to political considerations and with no thought except that of
discharging its trust. Witness these words Justice Laurel in an early landmark
case, People v. Vera, 21 decided in 1937: "If it is ever necessary for us to make
vehement affirmance during this formative period of political history, it is that
we are independent of the Executive no less than of the Legislative department
of our government independent in the performance of our functions,
undeterred by any consideration, free from politics, indifferent to popularity,
and unafraid of criticism in the accomplishment of our sworn duty as we see it
and as we understand it." 22 The hope of course was that such assertion of
independence impartiality was not mere rhetoric. That is a matter more
appropriately left to others to determine. It suffices to stake that what elicits
approval on the part of our people of a judiciary ever alert to inquire into alleged
breaches of the fundamental law is the realization that to do so is merely to do
what is expected of it and that thereby there is no invasion of spheres
appropriately belonging to the political branches. For it needs to be kept in kind
always that it can act only when there is a suit with proper parties before it,
wherein rights appropriate for judicial enforcement are sought to be vindicated.
Then, too, it does not approach constitutional questions with dogmatism or
apodictic certainty nor view them from the shining cliffs of perfection. This is
not to say though that it is satisfied with an empiricism untroubled by the search
for jural consistency and rational coherence. A balance has to be struck. So
juridical realism requires. Once allowance made that for all its care and
circumspection this Court manned by human beings fettered by fallibility,
nonetheless earnestly and sincerely striving to do right, the public acceptance
of its vigorous pursuit of the task of assuring that the Constitution be obeyed
is easy to understand. It has not in the past shirked its responsibility to
ascertain whether there has been compliance with and fidelity to constitutional
requirements. Such is the teaching of a host of cases from Angara v. Electoral
Commission 23 to Planas v. Commission on Elections. 24 It should continue to
exercise its jurisdiction, even in the face of a plausible but not sufficiently
persuasive insistence that the matter before it is political.
Nor am I persuaded that the reading of the current drift in American legal
scholarship by the Solicitor-General and his equally able associates presents
the whole picture. On the question of judicial review, it is not a case of black
and white; there are shaded areas. It goes too far, in my view, if the perspective
is one of dissatisfaction, with its overtones of distrust. This expression of
disapproval has not escaped Dean Rostow of Yale, who began one of his most
celebrated legal essays. The Democratic Character of Judicial Review, thus:
"A theme of uneasiness, and even of guilt, colors the literature about judicial
review. Many of those who have talked, lectured, and written about the
Constitution have been troubled by a sense that judicial review is
undemocratic." 25 He went on to state: "Judicial review, they have urged, is an
undemocratic shoot on an otherwise respectable tree. It should be cut off, or
at least kept pruned and inconspicuous." 26 His view was precisely the
opposite. Thus: "The power of constitutional review, to be exercised by some
part of the government, is implicit in the conception of a written constitution
delegating limited powers. A written constitution would promote discord rather
than order in society if there were no accepted authority to construe it, at the
least in case of conflicting action by different branches of government or of
constitutionally unauthorized governmental action against individuals. The
limitation and separation of powers, if they are to survive, require a procedure
for independent mediation and construction to reconcile the inevitable disputes
over the boundaries of constitutional power which arise in the process of
government." 27 More than that, he took pains to emphasize: "Whether another
method of enforcing the Constitution could have been devised, the short
answer is that no such method developed. The argument over the
constitutionality of judicial review has long since been settled by history. The
power and duty of the Supreme Court to declare statutes or executive action
unconstitutional in appropriate cases is part of the living Constitution. 'The
course of constitutional history,' Mr. Justice Frankfurter recently remarked,
'has cast responsibilities upon the Supreme Court which it would be
"stultification" for it to evade.' " 28 Nor is it only Dean Rostow who could point
Frankfurter, reputed to belong to the same school of thought opposed to
judicial activism, if not its leading advocate during his long stay in the United
States Supreme Court, as one fully cognizant of the stigma that attaches to a
tribunal which neglects to meet the demands of judicial review. There is a
statement of similar importance from Professor Mason: "In Stein v. New
York Frankfurter remarked, somewhat self-consciously perhaps, that the 'duty
of deference cannot be allowed imperceptibly to slide into abdication.'
" 29 Professor Konefsky, like Dean Rostow, could not accept characterization
of judicial review as undemocratic. Thus his study of Holmes and Brandeis,
the following appears: "When it is said that judicial review is an undemocratic
feature of our political system, it ought also to be remembered that architects
of that system did not equate constitutional government with unbridled majority
rule. Out of their concern for political stability and security for private rights, ...,
they designed a structure whose keystone was to consist of barriers to the
untrammeled exercise of power by any group. They perceived no contradiction
between effective government and constitutional checks. To James Madison,
who may legitimately be regarded as the philosopher of the Constitution, the
scheme of mutual restraints was the best answer to what he viewed as the
chief problem in erecting a system of free representative government: 'In
framing a government which is to be administered by men over men, the great
difficulty lies in this: you must first enable the government to control the
governed; and in the next place oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review. Could it be that
the tone of discontent apparent in the writings of eminent authorities on the
subject evince at the most fears that the American Supreme Court might
overstep the bounds allotted to the judiciary? It cannot be a denial of the fitness
of such competence being vested in judges and of their being called upon to
fulfill such a trust whenever appropriate to the decision of a case before them.
That is why it has been correctly maintained that notwithstanding the absence
of any explicit provision in the fundamental law of the United States
Constitution, that distinguished American constitutional historian, Professor
Corwin, could rightfully state that judicial review "is simply incidental to the
power of courts to interpret the law, of which the Constitution is part, in
connection with the decision of cases." 31 This is not to deny that there are
those who would place the blame or the credit, depending upon one's
predilection, on Marshall's epochal opinion in Marbury v. Madison. 32 Curtis
belonged to that persuasion. As he put it: "The problem was given no answer
by the Constitution. A hole was left where the Court might drive in the peg of
judicial supremacy, if it could. And that is what John Marshall did." 33 At any
rate there was something in the soil of American juristic thought resulting in
this tree of judicial power so precariously planted by Marshall striking deep
roots and showing wonderful vitality and hardiness. It now dominates the
American legal scene. Through it, Chief Justice Hughes, before occupying that
exalted position, could state in a lecture: "We are under a Constitution, but the
Constitution is what the judges say it is ... ." 34 The above statement is more
than just an aphorism that lends itself to inclusion in judicial anthologies or bar
association speeches. It could and did provoke from Justice Jackson, an
exponent of the judicial restraint school of thought, this meaningful query: "The
Constitution nowhere provides that it shall be what the judges say it is. How,
did it come about that the statement not only could be but could become
current as the most understandable comprehensive summary of American
Constitutional law?"35 It is no wonder that Professor Haines could pithily and
succinctly sum up the place of the highest American tribunal in the scheme of
things in this wise: "The Supreme Court of the United States has come to be
regarded as the unique feature of the American governmental system." 36 Let
me not be misunderstood. There is here no attempt to close one's eyes to a
discernible tendency on the part of some distinguished faculty minds to look
askance at what for them may be inadvisable extension of judicial authority.
For such indeed is the case as reflected in two leading cases of recent
vintage, Baker v. Carr, 37 decided in 1962 and Powell v. MacCormack, 38 in
1969, both noted in the opinion of the Chief Justice. The former disregarded
the warning of Justice Frankfurter in Colegrove v. Green 39 about the
American Supreme Court declining jurisdiction on the question of
apportionment as to do so would cut very deep into the very being of
Congress." 40 For him, the judiciary "ought not to enter this political thicket."
Baker has since then been followed; it has spawned a host of cases. 41 Powell,
on the question of the power of a legislative body to exclude from its ranks a
person whose qualifications are uncontested, for many the very staple of what
is essentially political, certainly goes even further than the authoritative
Philippine decision of Vera v. Avelino, 42 It does look then that even in the
United States, the plea for judicial self-restraint, even if given voice by those
competent in the field of constitutional law, has fallen on deaf ears. There is in
the comments of respondents an excerpt from Professor Freund quoting from
one of his essays appearing in a volume published in 1968. It is not without
interest to note that in another paper, also included therein, he was less than
assertive about the necessity for self-restraint and apparently mindful of the
claims of judicial activism. Thus: "First of all, the Court has a responsibility to
maintain the constitutional order, the distribution of public power, and the
limitations on that power." 43 As for Professor Bickel, it has been said that as
counsel for the New York Times in the famous Vietnam papers case, 44 he was
less than insistent on the American Supreme Court exercising judicial self-
restraint. There are signs that the contending forces on such question, for
some an unequal contest, are now quiescent. The fervor that characterized
the expression of their respective points of view appears to have been
minimized. Not that it is to be expected that it will entirely disappear,
considering how dearly cherished are, for each group, the convictions,
prejudices one might even say, entertained. At least what once was fitly
characterized as the booming guns of rhetoric, coming from both directions,
have been muted. Of late, scholarly disputations have been centered on the
standards that should govern the exercise of the power of judicial review. In
his celebrated Holmes lecture in 1959 at the Harvard Law School, Professor
Wechsler advocated as basis for decision what he termed neutral principles of
constitutional law. 45 It has brought forth a plethora of law review articles, the
reaction ranging from guarded conformity to caustic criticism. 46 There was, to
be sure, no clear call to a court in effect abandoning the responsibility
incumbent on it to keep governmental agencies within constitutional channels.
The matter has been put in temperate terms by Professor Frank thus: "When
allowance has been made for all factors, it nevertheless seems to me that the
doctrine of political questions ought to be very sharply confined to where the
functional reasons justify it and that in a give involving its expansion there
should be careful consideration also of the social considerations which may
militate against it. The doctrine has a certain specious charm because of its
nice intellectualism and because of the fine deference it permits to expertise,
to secret knowledge, and to the prerogatives of others. It should not be allowed
to grow as a merely intellectual plant." 47
It is difficult for me at least, not to be swayed by appraisal, coming from such
impeccable sources of the worth and significance of judicial review in the
United States. I cannot resist the conclusion then that the views advanced on
this subject by distinguished counsel for petitioners, with Senators Lorenzo M.
Taada and Jovito Salonga at the van, rather than the advocacy of the
Solicitor-General, possess the greater weight and carry persuasion. So much
then for the invocation of the political question principle as a bar to the exercise
of our jurisdiction.
3. That brings me to the issue of the validity of the ratification. The crucial point
that had to be met is whether Proclamation No. 1102 manifests fidelity to the
explicit terms of Article XV. There is, of course, the view not offensive to reason
that a sense of the realities should temper the rigidity of devotion to the strict
letter of the text to allow deference to its spirit to control. With due recognition
of its force in constitutional litigation, 48 if my reading of the events and the
process that led to such proclamation, so clearly set forth in the opinion of the
Chief Justice, is not inaccurate, then it cannot be confidently asserted that
there was such compliance. It would be to rely on conjectural assumptions that
did founder on the rock of the undisputed facts. Any other conclusion would,
for me, require an interpretation that borders on the strained. So it has to be if
one does not lose sight of how the article on amendments is phrased. A word,
to paraphrase Justice Holmes may not be a crystal, transparent and
unchanged, but it is not, to borrow from Learned Hand, that eminent jurist, a
rubber band either. It would be unwarranted in my view then to assert that the
requirements of the 1935 Constitution have been met. There are American
decisions, 49 and they are not few in number, which require that there be
obedience to the literal terms of the applicable provision. It is understandable
why it should be thus. If the Constitution is the supreme law, then its mandate
must be fulfilled. No evasion is tolerated. Submission to its commands can be
shown only if each and every word is given meaning rather than ignored or
disregarded. This is not to deny that a recognition conclusive effect attached
to the electorate manifesting its will to vote affirmatively on the amendments
proposed poses an obstacle to the judiciary being insistent on the utmost
regularity. Briefly stated, substantial compliance is enough. A great many
American State decisions may be cited in support of such a doctrine. 50
Even if the assumption be indulged in that Article XV is not phrased in terms
too clear to be misread, so that this Court is called upon to give meaning and
perspective to what could be considered words of vague generality, pregnant
with uncertainty, still whatever obscurity it possesses is illumined when the
light of the previous legislation is thrown on it. In the first Commonwealth
Act, 51 submitting to the Filipino people for approval or disapproval certain
amendments to the original ordinance appended to the 1935 Constitution, it
was made that the election for such purpose was to "be conducted in
conformity with the provisions of the Election Code insofar as the same may
be applicable." 52 Then came the statute, 53 calling for the plebiscite on the
three 1940 amendments providing for the plebiscite on the three 1930
amendments providing for a bicameral Congress or a Senate and a House of
Representatives to take the place of a unicameral National
Assembly, 54 reducing the term of the President to four years but allowing his
re-election with the limitation that he cannot serve more than eight consecutive
years, 55 and creating an independent Commission on Elections. 56 Again, it
was expressly provided that the election "shall be conducted in conformity with
the provisions of the Election Code in so far as the same may be
applicable." 57 The approval of the present parity amendment was by virtue of
a Republic Act 58 which specifically made applicable the then Election
59
Code. There is a similar provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional Convention, saw
to it that there be an increase in the membership of the House of
Representatives a maximum of one hundred eighty and assured the eligibility
of senators and representatives to become members of such constituent body
without forfeiting their seats, as proposed amendments to be voted on in the
1967 elections. 61 That is the consistent course of interpretation followed by
the legislative branch. It is most persuasive, if not controlling. The restraints
thus imposed would set limits to the Presidential action taken, even on the
assumption that either as an agent of the Constitutional Convention or under
his martial law prerogatives, he was not devoid of power to specify the mode
of ratification. On two vital points, who can vote and how they register their will,
Article XV had been given a definitive construction. That is why I fail to see
sufficient justification for this Court affixing the imprimatur of its approval on
the mode employed for the ratification of the revised Constitution as reflected
in Proclamation No. 1102.
4. Nor is the matter before us solely to be determined by the failure to comply
with the requirements of Article XV. Independently of the lack of validity of the
ratification of the new Constitution, if it be accepted by the people, in whom
sovereignty resides according to the Constitution, 62 then this Court cannot
refuse to yield assent to such a political decision of the utmost gravity,
conclusive in its effect. Such a fundamental principle is meaningless if it does
not imply, to follow Laski, that the nation as a whole constitutes the "single
center of ultimate reference," necessarily the possessor of that "power that is
able to resolve disputes by saying the last word." 63 If the origins of the
democratic polity enshrined in the 1935 Constitution with the declaration that
the Philippines is a republican state could be traced back to Athens and to
Rome, it is no doubt true, as McIver pointed out, that only with the recognition
of the nation as the separate political unit in public law is there the juridical
recognition of the people composing it "as the source of political
authority." 64From them, as Corwin did stress, emanate "the highest possible
embodiment of human will," 65 which is supreme and must be obeyed. To avoid
any confusion and in the interest of clarity, it should be expressed in the
manner ordained by law. Even if such is not the case, however, once it is
manifested, it is to be accepted as final and authoritative. The government
which is merely an agency to register its commands has no choice but to
submit. Its officials must act accordingly. No agency is exempt such a duty,
not even this Court. In that sense, the lack of regularity in the method employed
to register its wishes is fatal in its consequences. Once the fact of acceptance
by people of a new fundamental law is made evident, the judiciary is left with
no choice but to accord it recognition. The obligation to render it obeisance
falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While
certainly not controlling, they are not entirely bereft of persuasive significance.
In Miller v. Johnson, 66 decided in 1892, it was set forth in the opinion of Chief
Justice Holt that on May 3, 1890, an act was passed in Kentucky, providing for
the calling of a convention for the purpose of framing a new constitution and
the election of delegates. It provided that before any form of constitution made
by them should become operative, it should be submitted to the vote of the
state and ratified by a majority of those voting. The constitution then in force
authorized the legislature, the preliminary steps having been taken, to call a
convention "for the purpose of readopting, amending, or changing" it contained
no provision giving the legislature the power to require a submission of its work
to a vote of the people. The convention met in September, 1890. By April,
1891, it completed a draft of a constitution, submitted it to a popular vote, and
then adjourned until September following. When the convention reassembled,
the delegates made numerous changes in instrument. As thus amended, it
was promulgated by the convention of September 28, 1891, as the new
constitution. An action was brought to challenge its validity. It failed in the lower
court. In affirming such judgment dismissing the action, Chief Justice Holt
stated: "If a set of men, not selected by the people according to the forms of
law, were to formulate an instrument and declare it the constitution, it would
undoubtedly be the duty of the courts to declare its work a nullity. This would
be revolution, and this the courts of the existing government must resist until
they are overturned by power, and a new government established. The
convention, however, was the offspring of law. The instrument which we are
asked to declare invalid as a constitution has been made and promulgated
according to the forms of law. It is a matter of current history that both the
executive and legislative branches of the government have recognized its
validity as a constitution, and are now daily doing so. ... While the judiciary
should protect the rights of the people with great care and jealousy, because
this is its duty, and also because; in times of great popular excitement, it is
usually their last resort, yet it should at the same time be careful not to overstep
the proper bounds of its power, as being perhaps equally dangerous; and
especially where such momentous results might follow as would be likely in
this instance, if the power of the judiciary permitted, and its duty requires, the
overthrow of the work of the convention." 67In Taylor v. Commonwealth, 68 a
1903 decision, it was contended that the Virginia Constitution reclaimed in
1902 is invalid as it was ordained and promulgated by the convention without
being submitted for ratification or rejection by the people. The Court rejected
such a view. As stated in the opinion of Justice Harrison: "The Constitution of
1902 was ordained and proclaimed by a convention duly called by direct vote
of the people of the state to revise and amend the Constitution of 1869. The
result of the work of the convention has been recognized, accepted, and acted
upon as the only valid Constitution of the state by the Governor in swearing
fidelity to it and proclaiming it, as directed thereby; by the Legislature in its
formal official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the convention which assembled in the city of
Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by
the individual oaths of members to support it, and by enforcing its provisions;
and 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. The Constitution
having been thus acknowledged and accepted by the office administering the
government and by the people of the state, and there being no government in
existence under the Constitution of 1869 opposing or denying its validity, we
have no difficulty in holding that the Constitution in question, which went into
effect at noon on the 10th day of July, 1902, is the only rightful, valid, and
existing Constitution of this state, and that to it all the citizens of Virginia owe
their obedience and loyal allegiance." 69
It cannot be plausibly asserted then that premises valid in law are lacking for
the claim that the revised Constitution has been accepted by the Filipino
people. What is more, so it has been argued, it is not merely a case of its being
implied. Through the Citizens Assemblies, there was a plebiscite with the result
as indicated in Proclamation No. 1102. From the standpoint of respondents
then, they could allege that there was more than just mere acquiescence by
the sovereign people. Its will was thus expressed formally and unmistakably.
It may be added that there was nothing inherently objectionable in the informal
method followed in ascertaining its preference. Nor is the fact that Filipinos of
both sexes above the age of fifteen were given the opportunity to vote to be
deplored. The greater the base of mass participation, the more there is fealty
to the democratic concept. It does logically follow likewise that such
circumstances being conceded, then no justifiable question may be raised.
This Court is to respect what had thus received the people's sanction. That is
not for me though whole of it. Further scrutiny even then is not entirely
foreclosed. There is still an aspect that is judicial, an inquiry may be had as to
whether such indeed was the result. This is no more than what the courts do
in election cases. There are other factors to bear in mind. The fact that the
President so certified is well-nigh conclusive. There is in addition the evidence
flowing from the conditions of peace and stability. There thus appears to be
conformity to the existing order of things. The daily course of events yields
such a conclusion. What is more, the officials under the 1935 Constitution,
including practically all Representatives and a majority of the Senators, have
signified their assent to it. The thought persists, however, that as yet sufficient
time has not elapsed to be really certain.
Nor is this all. There is for me an obstacle to the petitions being dismissed for
such ascertainment of popular will did take place during a period of martial law.
It would have been different had there been that freedom of debate with the
least interference, thus allowing a free market of ideas. If it were thus, it could
be truly said that there was no barrier to liberty of choice. It would be a clear-
cut decision either way. One could be certain as to the fact of the acceptance
of the new or of adherence to the old. This is not to deny that votes are cast
by individuals with their personal concerns uppermost in mind, worried about
their immediate needs and captive to their existing moods. That is inherent in
any human institution, much more so in a democratic polity. Nor is it open to
any valid objection because in the final analysis the state exists for the
individuals who in their collectivity compose it. Whatever be their views, they
are entitled to respect. It is difficult for me, however, at this stage to feel secure
in the conviction that they did utilize the occasion afforded to give expression
to what was really in their hearts. This is not to imply that such doubt could not
be dispelled by evidence to the contrary. If the petitions be dismissed however,
then such opportunity is forever lost.
5. With the foregoing legal principles in mind, I find myself unable to join the
ranks of my esteemed brethren who vote for the dismissal of these petitions. I
cannot yield an affirmative response to the plea of respondents to consider the
matter closed, the proceedings terminated once and for all. It is not an easy
decision to reach. It has occasioned deep thought and considerable soul-
searching. For there are countervailing considerations that exert a compulsion
not easy to resist. It can be asserted with truth, especially in the field of social
and economic rights, that with the revised Constitution, there is an auspicious
beginning for further progress. Then too it could resolve what appeared to be
the deepening contradictions of political life, reducing at times governmental
authority to near impotence and imparting a sense of disillusionment in
democratic processes. It is not too much to say therefore that there had indeed
been the revision of a fundamental law to vitalize the very values out of which
democracy grows. It is one which has all the earmarks of being responsive to
the dominant needs of the times. It represents an outlook cognizant of the
tensions of a turbulent era that is the present. That is why for some what was
done represented an act of courage and faith, coupled with the hope that the
solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had
commanded a majority, there is not, while these lawsuits are being further
considered, the least interference, with the executive department. The
President in the discharge of all his functions is entitled to obedience. He
remains commander-in-chief with all the constitutional powers it implies. Public
officials can go about their accustomed tasks in accordance with the revised
Constitution. They can pursue even the tenor of their ways. They are free to
act according to its tenets. That was so these past few weeks, even petitions
were filed. There was not at any time any thought of any restraining order. So
it was before. That is how things are expected to remain even if the motions to
dismiss were not granted. It might be asked though, suppose the petitions
should prevail? What then? Even so, the decision of this Court need not be
executory right away. Such a disposition of a case before this Court is not
novel. That was how it was done in the Emergency Powers Act
controversy. 70 Once compliance is had with the requirements of Article XV of
the 1935 Constitution, to assure that the coming force of the revised charter is
free from any taint of infirmity, then all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of
unreality, to cherish illusions that cannot stand the test of actuality. What is
more, it may give the impression of reliance on what may, for the practical man
of affairs, be no more than gossamer distinctions and sterile refinements
unrelated to events. That may be so, but I find it impossible to transcend what
for me are the implications of traditional constitutionalism. This is not to assert
that an occupant of the bench is bound to apply with undeviating rigidity
doctrines which may have served their day. He could at times even look upon
them as mere scribblings in the sands to be washed away by the advancing
tides of the present. The introduction of novel concepts may be carried only so
far though. As Cardozo put the matter: "The judge, even when he is free, is
still not wholly free. He is not to innovate at pleasure. He is not a knight-errant,
roaming at will in pursuit of his own ideal of beauty or of goodness. He is to
draw his inspiration from consecrated principles. He is not to yield to
spasmodic sentiment, to vague and unregulated benevolence. He is to
exercise a discretion informed by tradition, methodized by analogy, disciplined
by system, and subordinated to "the primordial necessity of order in the social
life." Wide enough in all conscience is the field of discretion that
remains." 71 Moreover what made it difficult for this Court to apply settled
principles, which for me have not lost their validity, is traceable to the fact that
the revised Constitution was made to take effect immediately upon ratification.
If a period of time were allowed to elapse precisely to enable the judicial power
to be exercised, no complication would have arisen. Likewise, had there been
only one or two amendments, no such problem would be before us. That is
why I do not see sufficient justification for the orthodoxies of constitutional law
not to operate.
Even with full realization then that the approach pursued is not all that it ought
to have been and the process of reasoning not without its shortcomings, the
basic premises of a constitutional democracy, as I understand them and as set
forth in the preceding pages, compel me to vote the way I did.
TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he painstakingly deals with
the momentous issues of the cases at bar in all their complexity commands
my concurrence.
I would herein make an exposition of the fundamental reasons and
considerations for my stand.
The unprecedented and precedent-setting issue submitted by petitioners for
the Court's resolution is the validity and constitutionality of Presidential
Proclamation No. 1102 issued on January 17, 1973, certifying and proclaiming
that the Constitution proposed by the 1971 Constitutional Convention "has
been ratified by an overwhelming majority of all the votes cast by the members
of all the Barangays (Citizens Assemblies) throughout the Philippines, and has
thereby come into effect."
More specifically, the issue submitted is whether the purported ratification of
the proposed Constitution by means of the Citizens Assemblies has
substantially complied with the mandate of Article XV of the existing
Constitution of 1935 that duly proposed amendments thereto, in toto or parts
thereof, "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 thepeople for their ratification." 1
A necessary corollary issue is whether the purported ratification of the
proposed Constitution as signed on November 30, 1972 by the 1971
Constitutional Convention may be said also to have substantially complied with
its own mandate that "(T)his Constitution shall take immediately upon
its ratification by a majority of the votes castin a plebiscite called for the
purpose and except as herein provided, shall supersede the Constitution of
Nineteen hundred and thirty-five and all amendments thereto." 2
Respondents contend that "(A)lthough apparently what is
sought to be annulled is Proclamation No. 1102, what
petitioners really seek to invalidate is the new Constitution",
and their actions must be dismissed, because:
"the Court may not inquire into the validity of the procedure
for ratification" which is "political in character" and that "what
 is sought to be invalidated is not an act of the President but of
the people;
"(T)he fact of approval of the new Constitution by an
overwhelming majority of the votes cast asdeclared and
certified in Proclamation No. 1102 is conclusive on the courts;
"Proclamation No. 1102 was issued by the President in the
exercise of legislative power under martial law. ...
Alternatively, or contemporaneously, he did so as "agent" of
the Constitutional Convention;"
"alleged defects, such as absence of secret voting,
enfranchisement of persons less than 21 years, non
supervision (by) the Comelec are matters not required by
Article XV of the 1935 Constitution"; (sic)
"after ratification, whatever defects there might have been
in the procedure are overcome andmooted (and muted) by
the fact of ratification"; and
"(A)ssuming finally that Article XV of the 1935 Constitution
was not strictly followed, the ratification of the new
Constitution must nonetheless be respected. For the
procedure outlined in Article XV wasnot intended to be
exclusive of other procedures, especially one which
contemplates popular and direct participation of the citizenry
... ." 3
To test the validity of respondents' submittal that the Court, in annulling
Proclamation No. 1102 would really be "invalidating the new Constitution", the
terms and premises of the issues have to be defined.
Respondents themselves assert that "Proclamation No. 1102 ... is
plainly merely declaratory of the fact that the 1973 Constitution has
been ratified and has come into force. 4
The measure of the fact of ratification is Article XV of the 1935
Constitution. This has been consistently held by the Court in
the Gonzales: 5 and Tolentino 6 cases.
In the Tolentino case, this Court emphasized "that the provisions of
Section 1 of Article XV of the Constitution, dealing with the procedure
or manner of amending the fundamental law are binding upon the
Convention and the other departments of the government. It must be
added that ... they are no less binding upon the people." 7
In the same Tolentino case, this Court further proclaimed that "as
long as any amendment is formulated and submitted under the aegis
of the present Charter, any proposal for such amendment which is not
in conformity with the letter, spirit and intent of the Charter for effecting
amendments, cannot receive the sanction of this Court." 8
As continues to be held by a majority of this Court, proposed
amendments to the Constitution "should be ratified in only one way,
that is, in an election or plebiscite held in accordance with law and
participated in only by qualified and duly registered voters" 9 and under
the supervision of the Commission on Elections. 10
Hence, if the Court declares Proclamation 1102 null and void
because on its face, the purported ratification of the proposed
Constitution has not faithfully nor substantially observed nor complied
with the mandatory requirements of Article XV of the (1935)
Constitution, it would not be "invalidating" the proposed new
Constitution but would be simply declaring that the announced fact of
ratification thereof by means of the Citizens Assemblies referendums
does not pass the constitutional test and that the proposed new
Constitution has not constitutionally come into existence.
Since Proclamation 1102 is acknowledged by respondent to be
"plainly merely declaratory" of the disputed fact of ratification, they
cannot assume the very fact to be established and beg the issue by
citing the self-same declaration as proof of the purported ratification
therein declared.
What complicates the cases at bar is the fact that the proposed 1972
Constitution was enforced as having immediately taken effect upon the
issuance on January 17, 1973 of Proclamation 1102 and the question of
whether "confusion and disorder in government affairs would (not) result" from
a judicial declaration of nullity of the purported ratification is raised by the
Solicitor-General on behalf of respondents.
A comparable precedent of great crisis proportions is found in the Emergency
Powers cases, 11 wherein the Court in its Resolution of September 16, 1949
after judgment was initially not obtained on August 26, 1949 for lack of the
required six (6) votes, finally declared in effect that the pre-war emergency
powers delegated by Congress to the President, under Commonwealth Act
671 in pursuance of Article VI, section 26 of the Constitution, had ceased and
became inoperative at the latest in May, 1946 when Congress met in its first
regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and important
rights that had arisen under executive orders "issued in good faith and with the
best of intentions by three successive Presidents, and some of them may have
already produced extensive effects on the life of the nation" in the same
manner as may have arisen under the bona fide acts of the President now in
the honest belief that the 1972 Constitution had been validly ratified by means
of the Citizens Assemblies referendums and indicated the proper course
and solution therefor, which were duly abided by and confusion and disorder
as well as harm to public interest and innocent parties thereby avoided as
follows:
Upon the other hand, while I believe that the emergency powers had
ceased in June 1945, I am not prepared to hold that all executive
orders issued thereafter under Commonwealth Act No. 671, areper
se null and void. It must be borne in mind that these executive orders
had been issued in good faith and with the best of intentions by three
successive Presidents, and some of them may have already produced
extensive effects in the life of the nation. We have, for instance,
Executive Order No. 73, issued on November 12, 1945, appropriating
the sum of P6,750,000 for public works; Executive Order No. 86,
issued on January 7, 1946, amending a previous order regarding the
organization of the Supreme Court; Executive Order No. 89, issued on
January 1, 1946, reorganizing Courts of First Instance; Executive
Order No. 184, issued on November 19, 1948, controlling rice and
palay to combat hunger; and other executive orders appropriating
funds for other purposes. The consequences of a blanket
nullification of all these executive orders will be
unquestionably serious and harmful. And I hold that before nullifying
them, other important circumstances should be inquired into, as for
instance, whether or not they have been ratified by Congress
expressly or impliedly, whether their purposes have already been
accomplished entirely or partially, and in the last instance, to what
extent; acquiescence of litigants; de facto officers; acts and contracts
of parties acting in good faith; etc. It is my opinion that each executive
order must be viewed in the light of its peculiar circumstances, and, if
necessary and possible, nullifying it, precautionary measures should
be taken to avoid harm to public interest and innocent parties. 12
Initially, then Chief Justice Moran voted with a majority of the Court to grant
the Araneta and Guerrero petitions holding null and void the executive orders
on rentals and export control but to defer judgment on the Rodriguez and
Barredo petitions for judicial declarations of nullity of the executive orders
appropriating the 1949-1950 fiscal year budget for the government and P6
million for the holding of the 1949 national elections. After rehearsing, he
further voted to also declare null and void the last two executive orders
appropriating funds for the 1949 budget and elections, completing the
"sufficient majority" of six against four dissenting justices "to pronounce a valid
judgment on that matter." 13
Then Chief Justice Moran, who penned the Court's majority resolution,
explained his vote for annulment despite the great difficulties and possible
"harmful consequences" in the following passage, which bears re-reading:
However, now that the holding of a special session of Congress for
the purpose of remedying the nullity of the executive orders in question
appears remote and uncertain, I am compelled to, and do hereby, give
my unqualified concurrence in the decision penned by Mr. Justice
Tuason declaring that these two executive orders were issued without
authority of law.
While in voting for a temporary deferment of the judgment I was moved
by the belief that positive compliance with the Constitution by the other
branches of the Government, which is our prime concern in all these
cases, would be effected, and indefinite deferment will produce the
opposite result because it would legitimize a prolonged or permanent
evasion of our organic law. Executive orders which are, in our opinion,
repugnant to the Constitution, would be given permanent life, opening
the way or practices which may undermine our constitutional structure.
The harmful consequences which, as I envisioned in my concurring
opinion, would come to pass should the said executive orders be
immediately declared null and void are still real. They have not
disappeared by reason of the fact that a special session of Congress
is not now forthcoming. However, the remedy now lies in the hands of
the Chief Executive and of Congress, for the Constitution vests in the
former the power to call a special session should the need for one
arise, and in the latter, the power to pass a valid appropriations act.
That Congress may again fail to pass a valid appropriations act is a
remote possibility, for under the circumstances it fully realizes its great
responsibility of saving the nation from breaking down; and
furthermore, the President in the exercise of his constitutional powers
may, if he so desires, compel Congress to remain in special session
till it approves the legislative measures most needed by the country.
Democracy is on trial in the Philippines, and surely it will emerge
victorious as a permanent way of life in this country, if each of the great
branches of the Government, within its own allocated sphere,
 complies with its own constitutional duty, uncompromisingly and
regardless of difficulties.
Our Republic is still young, and the vital principles underlying its
organic structure should be maintained firm and strong, hard as the
best of steel, so as to insure its growth and development along solid
lines of a stable and vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority judgment
(declaring null and void the rental and export control executive orders) likewise
observed that "(T)he truth is that under our concept of constitutional
government, in times of extreme perils more than in normal circumstances 'the
various branches, executive, legislative, and judicial,' given the ability to act,
are called upon 'to perform the duties discharge the responsibilities committed
to respectively.' " 15
It should be duly acknowledged that the Court's task of discharging its duty
and responsibility has been considerably lightened by the President's public
manifestation of adherence to constitutional processes and of working within
the proper constitutional framework as per his press conference of January
20,1973, wherein he stated that "(T)he Supreme Court is the final arbiter of the
Constitution. It can and will probably determine the validity of this Constitution.
I did not want to talk about this because actually there is a case pending before
the Supreme Court. But suffice it to say that I recognize the power of the
Supreme Court. With respect to appointments, the matter falls under a general
provision which authorizes the Prime Minister to appoint additional members
to the Supreme Court. Until the matter of the new Constitution is decided, I
have no intention of utilizing that power." 16
Thus, it is that as in an analogous situation wherein the state Supreme Court
of Mississippi held that the questions of whether the submission of the
proposed constitutional amendment of the State Constitution providing for an
elective, instead of an appointive, judiciary and whether the proposition was in
fact adopted, were justifiable and not political questions, we may echo the
words therein of Chief Justice Whitfield that "(W)e do not 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." 17
In confronting the issues at bar, then, with due regard for my colleagues'
contrary views, we are faced with the hard choice of maintaining a firm and
strict perhaps, even rigid stand that the Constitution is a "superior
paramount law, unchangeable by ordinary means" save in the particular mode
and manner prescribed therein by the people, who, in Cooley's words, so "tied
up (not only) the hands of their official agencies, but their own hands as
well" 18 in the exercise of their sovereign will or a liberal and flexible stand that
would consider compliance with the constitutional article on the amending
process as merely directory rather than mandatory.
The first choice of a strict stand, as applied to the cases at bar, signifies that
the Constitution may be amended in toto or otherwise exclusively "by approval
by a majority of the votes cast an election at which the amendments are
submitted to the people for their ratification", 19 participated
in only by qualified and duly registered voters twenty-one years of age or
over 20 and duly supervised by the Commission on Elections, 21 in accordance
with the cited mandatory constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of said
requirements on the theory urged by respondents that "the procedure outlined
in Article XV was not intended to be exclusive of other procedures especially
one which contemplates popular and direct participation of the
citizenry", 22 that the constitutional age and literacy requirements and other
statutory safeguards for ascertaining the will of the majority of the people may
likewise be changed as "suggested, if not prescribed, by the people (through
the Citizens Assemblies) themselves", 23 and that the Comelec is
constitutionally "mandated to oversee ... elections (of public officers)
and not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first declared in the
historic 1803 case of Marbury vs. Madison 25 the U.S. Supreme Court's power
of judicial review and to declare void laws repugnant to the Constitution, there
is no middle ground between these two alternatives. As Marshall expounded
it: "(T)he Constitution is either a superior paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts, and, like other
acts, alterable when the legislature shall please to alter it. If the former part of
the alternative be true, then a legislative act, contrary to the Constitution, is not
law; if the latter part be true, then written constitutions are absurd attempts on
the part of a people, to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third later in
the 1936 landmark case of Angara vs. Electoral Commission, 26 "(T)he
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 of good
government and restrictions embodied in our Constitution are real as they
should be in any living Constitution."
Justice Laurel pointed out that in contrast to the United States Constitution,
the Philippine Constitution as "a definition of the powers of government" placed
upon the judiciary the great burden of "determining the nature, scope and
extent of such powers" and stressed that "when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the
other departments ... but only asserts the solemn and sacred obligation
entrusted to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy
the rights which the instrument secures and guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case of McCulloch
vs. Maryland 27 the "climactic phrase," 28 "we must never forget that it is
a constitution we are expounding," termed by Justice Frankfurter as "the
single most important utterance in the literature of constitutional law most
important because most comprehensive and comprehending." 29 This
enduring concept to my mind permeated to this Court's exposition and
rationale in the hallmark case of Tolentino, wherein we rejected the
contentions on the Convention's behalf "that the issue ... is a political question
and that the Convention being a legislative body of the highest order is
sovereign, and as such, its acts impugned by petitioner are beyond the control
of Congress and the Courts." 30
This Court therein made its unequivocal choice of strictly
requiring faithful (which really includes substantial) compliance with
the mandatory requirements of the amending process.
1. In denying reconsideration of our judgment of October 16, 1971 prohibiting
the submittal in an advance election of 1971 Constitutional Convention's
Organic Resolution No. 1 proposing to amend Article V, section 1 of the
Constitution by lowering the voting age to 18 years (vice 21 years) 30a "without
prejudice to other amendments that will be proposed in the future ... on other
portions of the amended section", this Court stated that "the constitutional
provision in question (as proposed) presents no doubt which may be resolved
in favor of respondents and intervenors. We do not believe such doubt can
exist only because it is urged that the end sought to be achieved is to
be desired. Paraphrasing no less than the President of Constitutional
Convention of 1934, Claro M. Recto, let those who would put aside, invoking
grounds at best controversial, any mandate of the fundamental law purportedly
in order to attain some laudable objective bear in mind that someday somehow
others with purportedly more laudable objectives may take advantage of the
precedent and continue the destruction of the Constitution, making those who
laid down the precedent of justifying deviations from the requirements of the
Constitution the victims of their own folly." 31
2. This Court held in Tolentino 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 allsubject 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 1 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 thelives, 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
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 insulatedagainst
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 powerful and omnipotent
as their original counterparts. 32
3. This Court in Tolentino likewise formally adopted the doctrine of proper
submission first advanced in Gonzales vs. Comelec 33, thus:
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 basisfor
an intelligent appraisal of the nature of 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 hardly started considering the merits of
hundreds, if not thousands, proposals to amend the existing
Constitution, to present to 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 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.' " 34
4. Four other members of the Court 35 in a separate concurrence in Tolentino,
expressed their "essential agreement" with Justice Sanchez' separate opinion
in Gonzales on the need for "fair submission (and) intelligent rejection" as
"minimumrequirements that must be met in order that there can be a proper
submission to the people of a proposed constitutional amendment" thus:
... amendments must be fairly laid before the people for their blessing
or spurning. The people are not to be mere rubber stamps. They are
not to vote blindly. They must be afforded ample opportunity to mull
over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly
insidious influences. We believe the word "submitted" can only mean
that the government, within its maximum capabilities, should strain
every effort to inform every citizen of the provisions to be amended,
and the proposed amendments and the meaning, nature and effects
thereof. By this, we are not to be understood as saying that, if one
citizen or 100 citizens or 1,000 citizens cannot be reached, then there
is no submission within the meaning of the word as intended by the
framers of the Constitution. What the Constitution in effect directs is
that the government, in submitting an amendment for ratification,
should put every instrumentality or agency within its structural
framework to enlighten the people, educate them with respect to their
act of ratification or rejection. For as we have earlier stated, one thing
is submission and another is ratification. There must be fair
submission, intelligent consent or rejection. 36
They stressed further the need for undivided attention, sufficient
information and full debate, conformably to the intendment of Article XV,
section 1 of the Constitution, in this wise:
A number of doubts or misgivings could conceivably and logically
assail the average voter. Why should the voting age be lowered at all,
in the first place? Why should the new voting age be precisely 18
years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the
18-year old as mature as the 21-year old, so that there is no need of
an educational qualification to entitle him to vote? In this age of
permissiveness and dissent, can the 18-year old be relied upon to vote
with judiciousness when the 21-year old, in the past elections, has not
performed so well? If the proposed amendment is voted down by the
people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed
amendment ratified at this particular time? Do some of the members
of the Convention have future political plans which they want to begin
to subserve by the approval this year of this amendment? If this
amendment is approved, does it thereby mean that the 18-year old
should not also shoulder the moral and legal responsibilities of the 21-
year old? Will he be required to compulsory military service under the
colors? Will the contractual consent be reduced to 18 years? If I vote
against the amendment, will I not be unfair to my own child who will
be 18 years old, come 1973?
The above are just samplings from here, there and everywhere
from a domain (of searching questions) the bounds of which are not
immediately ascertainable. Surely, many more questions can be
added to the already long litany. And the answers cannot except as
the questions are debated fully, pondered upon purposefully, and
accorded undivided attention.
Scanning the contemporary scene, we say that the people are not,
and by election time will not be,sufficiently informed of the meaning,
nature and effects of the proposed constitutional amendment. They
have not been afforded ample time to deliberate thereon
 conscientiously. They have been and are effectively distracted from
a full and dispassionate consideration of the merits and demerits of
the proposed amendment by their traditional pervasive involvement in
local elections and politics. They cannot thus weigh in tranquility the
need for and the wisdom proposed amendment. 37
5. This Court therein dismissed the plea of disregarding mandatory
requirements of the amending process "in favor of allowing the sovereign
people to express their decision on the proposed amendments" as
"anachronistic in the real constitutionalism and repugnant to the essence of
the rule of law," in the following terms:
... The preamble of the Constitution says that the Constitution has
been ordained by the 'Filipino people, imploring the aid of Divine
Providence.' Section 1 of Article XV is nothing than a part of the
Constitution thus ordained by the people. Hence, in construing said
section, We must read it as if thepeople had said, 'This Constitution
may be amended, but it is our will that the amendment must
beproposed and submitted to Us for ratification only in the manner
herein provided.' ... Accordingly, the real issue here cannot be whether
or not the amending process delineated by the present Constitution
may be disregarded in favor of allowing the sovereign people to
express their decision on the proposed amendments, if only because
it is evident that the very idea of departing from the fundamental law
is anachronistic in the realm of constitutionalism and repugnant to the
essence of the rule of law; rather, it is whether or not the provisional
nature of the proposed amendment and themanner of its
submission to the people for ratification or rejection conform with
the mandate of the people themselves in such regard, as expressed
in, the Constitution itself. 38
6. This Court, in not heeding the popular clamor, thus stated its position: "(I)t
would be tragic and contrary to the plain compulsion of these perspectives, if
the Court were to allow itself in deciding this case to be carried astray by
considerations other than the imperatives of the rule of law and of the
applicable provisions of the Constitution. Needless to say, in a larger measure
than when it binds other departments of the government or any other official
or entity, the Constitution imposes upon the Court the sacred duty to give
meaning and vigor to the Constitution, by interpreting and construing its
provisions in appropriate cases with the proper parties and by striking down
any act violative thereof. Here, as in all other cases, We are resolved
to discharge that duty. 39
7. The Chief Justice, in his separate opinion in Tolentino concurring with this
Court's denial of the motion for reconsideration, succinctly restated this Court's
position on the fundamentals, as follows:
On the premature submission of a partial amendment proposal,
with a "temporary provisional or tentative character": "... a partial
amendment would deprive the voters of the context which is usually
necessary for them to make a reasonably intelligent appraisal of the
issue submitted for their ratification or rejection. ... Then, too, the
submission to a plebiscite of a partial amendment, without adefinite
frame of reference, is fraught with possibilities which may jeopardize
the social fabric. For one thing, it opens the door to wild speculations.
It offers ample opportunities for overzealous leaders and members of
opposing political camps to unduly exaggerate the pros and cons of
the partial amendment proposed. In short, it is apt to breed false
hopes and create wrong impressions. As a consequence, it is bound
to unduly strain the people's faith in the soundness and validity of
democratic processes and institutions.
On the plea to allow submission to the sovereign people of the
"fragmentary and incomplete" proposal, although inconsistent with the
letter and spirit of the Constitution: "The view, has, also, advanced that
the foregoing considerations are not decisive on the issue before Us,
inasmuch as thepeople are sovereign, and the partial amendment
involved in this case is being submitted to them. The issue before Us
is whether or not said partial amendment may be validly submitted to
the people for ratification "in a plebiscite coincide with the local
elections in November 1971," and this particular issue will not be
submitted to the people. What is more, the Constitution
does not permit its submission to the people. The question sought to
be settled in the scheduled plebiscite is whether or not the people are
in favor of the reduction of the voting age.
On a "political" rather than "legalistic" approach: "Is this approach
to the problem too "legalistic?" This term has possible connotations. It
may mean strict adherence to the law, which in the case at bar is
the Supreme Law of the land. On point, suffice it to say that, in
compliance with the specific man of such Supreme Law, the members
of the Supreme Court taken the requisite "oath to support and defend
the Constitution." ... Then, again, the term "legalistic" may be used to
suggest inversely that the somewhat strained interpretation of the
Constitution being urged upon this Court be toleratedor, at least,
overlooked, upon the theory that the partial amendment on voting age
is badly needed and reflects the will of the people, specially the youth.
This course of action favors, in effect, adoption of a political approach,
inasmuch as the advisability of the amendment and an appraisal of
the people's feeling thereon political matters. In fact, apart from the
obvious message of the mass media, and, at times, of the pulpit, the
Court has been literally bombarded with scores of handwritten letters,
almost all of which bear the penmanship and the signature of girls, as
well as letterhead of some sectarian educational institutions, generally
stating that the writer is 18 years of age and urging that she or he be
allowed to vote. Thus, the pressure of public opinion has brought to
bear heavily upon the Court for a reconsideration of its decision in the
case at bar.
As above stated, however, the wisdom of the amendment and
the popularity thereof are political questions beyond our province. In
fact, respondents and the intervenors originally maintained that We
have no jurisdiction to entertain the petition herein, upon the ground
that the issue therein raised is a political one. Aside from the absence
of authority to pass upon political question, it is obviously improper
and unwise for the bench to develop into such questions owing to the
danger of getting involved in politics, more likely of a partisan nature,
and, hence, of impairing the image and the usefulness of courts of
justice as objective and impartial arbiters of justiciable controversies.
Then, too, the suggested course of action, if adopted, would constitute
a grievous disservice to the people and the very Convention itself.
Indeed, the latter and the Constitution it is in the process of drafting
stand essentially for the Rule of Law. However, as the Supreme Law
of the land, a Constitution would not be worthy of its name, and the
Convention called upon to draft it would be engaged in a futile
undertaking, if we did not exact faithful adherence to the fundamental
tenets set forth in the Constitution and compliance with its provisions
were not obligatory. If we, in effect, approved, consented to or even
overlooked a circumvention of said tenets and provisions, because of
the good intention with which Resolution No. 1 is animated, the Court
would thereby become theJudge of the good or bad intentions of the
Convention and thus be involved in a question essentially political in
nature.
This is confirmed by the plea made in the motions for reconsideration
in favor of the exercise of judicial statesmanship in deciding the
present case. Indeed, "politics" is the word commonly used to
epitomize compromise, even with principles, for the sake of political
expediency or the advancement of the bid for power of a given political
party. Upon the other hand, statesmanship is the expression usually
availed of to refer to high politics or politics on the highest level. In any
event, politics, political approach, political expediency and
statesmanship are generally associated, and often identified, with the
dictum that "the end justifies the means." I earnestly hope that the
administration of justice in this country and the Supreme Court, in
particular, will adhere to or approve or indorse such dictum." 40
Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he
primary purpose for the submission of the proposed amendment lowering the
voting age to the plebiscite on November 8, 1971 is to enable the youth 18 to
20 years who comprise more than three (3) million of our population to
participate in the ratification of the new Constitution in so far as "to allow young
people who would be governed by the Constitution to be given a say on what
kind of Constitution they will have" is a laudable end, ... those urging the vitality
and importance of the proposed constitutional amendment and its approval
ahead of the complete and final draft of the Constitution must seek a valid
solution to achieve it in a manner sanctioned by the amendatory process
ordained by our people in the present Constitution" 41 so that there may be
"submitted, not piece-meal, but by way of complete and final amendments as
an integrated whole (integrated either with the subsisting Constitution or with
the new proposed Constitution)..."
9. The universal validity of the vital constitutional precepts and principles
above-enunciated can hardly be gainsaid. I fail to see the attempted distinction
of restricting their application to proposals for amendments of particular
provisions of the Constitution and not to so-called entirely new Constitutions.
Amendments to an existing Constitution presumably may be only of certain
parts or in toto, and in the latter case would rise to an entirely new Constitution.
Where this Court held in Tolentino that "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", it would appeal
that the reverse would equally be true; which is to say, that the adoption of a
whole new Constitution would be of no less importance than any particular
amendment and therefore the necessary care and deliberation as well as the
mandatory restrictions and safeguards in the amending process ordained by
the people themselves so that "they (may) be insulated against precipitate and
hasty actions motivated by more or less passing political moods or fancies"
must necessarily equally apply thereto.
III
1. To restate the basic premises, the people provided in Article XV of the
Constitution for the amending processonly "by approval by a majority of the
votes cast at an election at which the (duly proposed) amendments are
submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby
enfranchised and granted the right of suffrage may speak the "will of the body
politic", viz, qualified literate voters twenty one years of age or over with one
year's residence in the municipality where they have registered.
The people, not as yet satisfied, further provided by amendment duly approved
in 1940 in accordance with Article XV, for the creation of
an independent Commission on Elections with "exclusive charge" for the
purpose of "insuring free, orderly and honest elections" and ascertaining the
true will of the electorate and more, as ruled by this Court in Tolentino, in
the case of proposed constitutional amendments, insuring proper
submission to the electorate of such proposals. 42
2. A Massachussets case 43 with a constitutional system and provisions
analogous to ours, best defined the uses of the term "people" as a body
politic and "people" in the political sense who are synonymous with the
qualified voters granted the right to vote by the existing Constitution and who
therefore are "the sole organs through which the will of the body politic can be
expressed."
It was pointed out therein that "(T)he word 'people' may have somewhat
varying significations dependent upon the connection in which it is used. In
some connections in the Constitution it is confined to citizens and means the
same as citizens. It excludes aliens. It includes men, women and children. It
comprehends not only the sane, competent, law-abiding and educated, but
also those who are wholly or in part dependents and charges upon society by
reason of immaturity, mental or moral deficiency or lack of the common
essentials of education. All these persons are secured fundamental
guarantees of the Constitution in life, liberty and property and the pursuit of
happiness, except as these may be limited for the protection of society."
In the sense of "body politic (as) formed by voluntary association of individuals"
governed by a constitution and common laws in a "social compact ... for the
common good" and in another sense of "people" in a "practical sense" for
"political purposes" it was therein fittingly stated that in this sense, "people"
comprises many who, by reason of want of years, of capacity or of the
educational requirements of Article 20 of the amendments of the Constitution,
can have no voice in any government and who yet are entitled to all the
immunities and protection established by the Constitution. 'People' in this
aspect is coextensive with the body politic. But it is obvious that 'people' cannot
be used with this broad meaning of political signification. The 'people' in this
connection means that part of the entire body of inhabitants who under the
Constitution are intrusted with the exercise of the sovereign power and the
conduct of government. The 'people' in the Constitution in a practical
sense means those who under the existing Constitution possess the right to
exercise the elective franchise and who, while that instrument remains in force
unchanged, will be the sole organs through which the will of the body
politic can beexpressed. 'People' for political purposes must be
considered synonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the people are thus
the source of political power, their governments, national and state, have been
limited by constitutions, and they have themselves thereby set bounds to their
own power, as against the sudden impulse of mere majorities." 44
From the text of Article XV of our Constitution, requiring approval of
amendment proposals "by a majority of thevotes cast at an election at which
the amendments are submitted to the people for their ratification", it seems
obvious as above-stated that "people" as therein used must be considered
synonymous with "qualified voters" as enfranchised under Article V, section 1
of the Constitution since only "people" who are qualified voters can exercise
the right of suffrage and cast their votes.
3. Sound constitutional policy and the sheer necessity of adequate safeguards
as ordained by the Constitution and implementing statutes to ascertain and
record the will of the people in free, orderly and honest elections supervised
by the Comelec make it imperative that there be strict adherence to the
constitutional requirements laid down for the process of amending in toto or in
part the supreme law of the land.
Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for
the holding of barrio plebiscites thus: "SEC. 6. Plebiscite. A plebiscite may
be held in the barrio when authorized by a majority vote of the members
present in the barrio assembly, there being a quorum, or when called by at
least four members of the barrio council: Provided, however, That no plebiscite
shall be held until after thirty days from its approval by either body, and such
plebiscite has been given the widest publicity in the barrio, stating the date,
time and place thereof, the questions or issues to be decided, action to be
taken by the voters, and such other information relevant to the holding of the
plebiscite." 46
As to voting at such barrio plebiscites, the Charter further requires that
"(A)ll duly registered barrio assembly members qualified to vote may vote in
the plebiscite. Voting procedures may be made either in writing as in regular
elections, and/or declaration by the voters to the board of election tellers." 47
The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite
may be called to decide on the recall of any member of the barrio council. A
plebiscite shall be called to approve any budgetary, supplemental
appropriations or special tax ordinances" and the required majority vote is
specified: "(F)or taking action on any of the above enumerated measures,
majority vote of all the barrio assembly members registered in the list of the
barrio secretary is necessary." 48
The qualifications for voters in such barrio plebiscites and elections of barrio
officials 49 comply with the suffrage qualifications of Article V, section 1 of the
Constitution and provide that "(S)EC. 10. Qualifications of Voters and
Candidates. Every citizen of the Philippines, twenty one years of age or
over, able to read and write, who has been a resident of the barrio during the
six months immediately preceding the election, duly registered in the list of
voters by the barrio secretary, who is not otherwise disqualified, may vote or
be a candidate in the barrio elections." 50
IV
1. Since it appears on the face of Proclamation 1102 that the mandatory
requirements under the above-cited constitutional articles have not been
complied with and that no election or plebiscite for ratification as therein
provided as well as in section 16 of Article XVII of the proposed Constitution
itself 51 has been called or held, there cannot be said to have been a valid
ratification.
2. Petitioners raised serious questions as to the veracity and genuineness of
the reports or certificates of results purportedly showing unaccountable
discrepancies in seven figures in just five provinces 52 between the reports as
certified by the Department of Local Governments and the reports as directly
submitted by the provincial and city executives, which latter reports
respondents disclaimed inter alia as not final and complete or as not
signed; 53 whether the reported votes of approval of the proposed Constitution
conditioned upon the non-convening of the interim National Assembly
provided in Article XVII, section 1 thereof, 54 may be considered as valid; the
allegedly huge and uniform votes reported; and many others.
3. These questions only serve to justify and show the basic validity of the
universal principle governing written constitutions that proposed amendments
thereto or in replacement thereof may be ratified only in the particular mode or
manner prescribed therein by the people. Under Article XV, section 1 of our
Constitution, amendments thereto may be ratified only in the one way therein
provided, i.e. in an election or plebiscite held in accordance with law and duly
supervised by the Commission on Elections, and which is participated in only
by qualified and duly registered voters. In this manner, the safeguards
provided by the election code generally assure the true ascertainment of the
results of the vote and interested parties would have an opportunity to thresh
out properly before the Comelec all such questions in pre-proclamation
proceedings.
4. At any rate, unless respondents seriously intend to question the very
statements and pronouncements in Proclamation 1102 itself which shows on
its face, as already stated, that the mandatory amending process required by
the (1935) Constitution was not observed, the cases at bar need not reach the
stage of answering the host of questions, raised by petitioners against the
procedure observed by the Citizens Assemblies and the reported referendum
results since the purported ratification is rendered nugatory by virtue of such
non-observance.
5. Finally, as to respondents' argument that the President issued Proclamation
1102 "as "agent" of the Constitutional Convention" 55 under Resolution No.
5844 approved on November 22, 1973, and "as agent of the Convention the
President could devise other forms of plebiscite to determine the will of the
majority vis-a-vis the ratification of the proposed Constitution." 56
The minutes of November 22, 1972, of the Convention, however, do not at all
support this contention. On the contrary, the said minutes fully show that the
Convention's proposal and "agency" was that the President issue a decree
precisely calling a plebiscite for the ratification of the proposed new
Constitution on an appropriate date, under the charge of the Comelec, and
with a reasonable period for an information campaign, as follows:
12. Upon recognition by the Chair, Delegate Duavit moved for
the approval of the resolution, the resolution portion of which
read as follows:
"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971
Constitutional Convention propose to President Ferdinand E.
Marcos that a decree be issued calling a plebiscite for the
ratification of the proposed New Constitution on such
appropriate date as he shall determine and providing for the
necessary funds therefor, and that copies of this resolution as
approved in plenary session be transmitted to the President
of the Philippines and the Commission on Elections for
implementation."
He suggested that in view of the expected approval of the final draft of
the new Constitution by the end of November 1972 according to the
Convention's timetable, it would be necessary to lay the groundwork
for the appropriate agencies of the government to undertake the
necessary preparation for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.) contended that the
resolution was unnecessary because section 15, Article XVII on the
Transitory Provision, which had already been approved on second
and third readings, provided that the new constitution should be
ratified in a plebiscite called for the purpose by the incumbent
President. Delegate Duavit replied that the provision referred to
did notinclude the appropriation of funds for the plebiscite and that,
moreover, the resolution was intended to serve formal notice to
the President and the Commission on Elections to initiate the
necessary preparations.
xxx xxx xxx
12.4 Interpellating, Delegate Madarang suggested that a reasonable
period for an information campaign was necessary in order to properly
apprise the people of the implications and significance of the new
charter. Delegate Duavit agreed, adding that this was precisely why
the resolution was modified to give the President the discretion to
choose the most appropriate date for the plebiscite.
12.5 Delegate Laggui asked whether a formal communication to the
President informing him of the adoption of the new Constitution would
not suffice considering that under Section 15 of the Transitory
Provisions, the President would be duty-bound to call a plebiscite for
its ratification. Delegate Duavit replied in the negative, adding that the
resolution was necessary to serve notice to the proper authorities
to prepare everything necessary for the plebiscite.
12.6 In reply to Delegate Britanico, Delegate Duavit stated that
the mechanics for the holding of theplebiscite would be laid down by
the Commission on Elections in coordination with the President.
12.7 Delegate Catan inquired if such mechanics for the plebiscite
could include a partial lifting of martial law in order to allow the people
to assemble peaceably to discuss the new Constitution. Delegate
Duavit suggested that the Committee on Plebiscite and Ratification
could coordinate with the COMELEC on the matter.
12.8 Delegate Guzman moved for the previous question. The Chair
declared that there was one more interpellant and that a prior
reservation had been made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his interpellation that there was
actually no need for such a resolution in view of the provision of
section 15, Article XVII on the Transitory Provisions. Delegate Duavit
disagreed, pointing out that the said provision did not provide for the
funds necessary for the purpose.
13. Delegate Ozamiz then moved to close the debate and proceed to
the period of amendment.
13.1 Floor Leader Montejo stated that there were no reservations to
amend the resolution.
13.2 Delegate Ozamiz then moved for the previous question.
Submitted to a vote, the motion was approved.
Upon request of the Chair, Delegate Duavit restated the resolution for
voting.
14.1. Delegate Ordoez moved for nominal voting. Submitted to a
vote, the motion was lost.
14.2. Thereupon, the Chair submitted the resolution to a vote. It was
approved by a show of hands.57
I, therefore, vote to deny respondents' motion to dismiss and to give due
course to the petitions.
Promulgated: June 4, 1973 *
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my
concurrence.
I
It is my view that to preserve the independence of the State, the maintenance
of the existing constitutional order and the defense of the political and social
liberties of the people, in times of a grave emergency, when the legislative
branch of the government is unable to function or its functioning would itself
threaten the public safety, the Chief Executive may promulgate measures
legislative in character, for the successful prosecution of such objectives. For
the "President's power as Commander- in-chief has been transformed from a
simple power of military command to a vast reservoir of indeterminate powers
in time of emergency. ... In other words, the principal canons of constitutional
interpretation are ... set aside so far as concerns both the scope of the national
power and the capacity of the President to gather unto himself all
constitutionally available powers in order the more effectively to focus them
upon the task of the hour." (Corwin, The President: Office & Powers, pp. 317,
318, [1948]).
1. The proclamation of martial rule, ushered the commencement of a crisis
government in this country. In terms of power, crisis government in a
constitutional democracy entails the concentration of governmental power.
"The more complete the separation of powers in a constitutional system, the
more difficult, and yet the more necessary" according to Rossiter, "will be their
fusion in time of crisis... The power of the state in crisis must not only be
concentrated and expanded, it must be freed from the normal system of
constitutional and legal limitations. One of the basic features of emergency
powers is the release of the government from the paralysis of constitutional
restraints" (Rossiter, Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the effective action of the
government is channeled through the person of the Chief Executive. "Energy
in the executive," according to Hamilton, "is essential to the protection of the
community against foreign attacks ... to the protection of property against those
irregular and high-handed combinations which sometimes interrupt the
ordinary course of justice; to the security of liberty against the enterprises and
assaults of ambition, of faction, and of anarchy." (The Federalist, Number 70).
"The entire strength of the nation", said Justice Brewer in the Debs case (158
U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the land the
full and free exercise of all national powers and the security of all rights
entrusted by the constitution to its care." The marshalling and employment of
the "strength of the nation" are matters for the discretion of the Chief Executive.
The President's powers in time of emergency defy precise definition since their
extent and limitations are largely dependent upon conditions and
circumstances.
2. The power of the President to act decisively in a crisis has been grounded
on the broad conferment upon the Presidency of the Executive power, with the
added specific grant of power under the "Commander-in-Chief" clause of the
constitution. The contours of such powers have been shaped more by a long
line of historical precedents of Presidential action in times of crisis, rather than
judicial interpretation. Lincoln wedded his powers under the "commander-in-
chief" clause with his duty "to take care that the laws be faithfully executed," to
justify the series of extraordinary measures which he took the calling of
volunteers for military service, the augmentation of the regular army and navy,
the payment of two million dollars from unappropriated funds in the Treasury
to persons unauthorized to receive it, the closing of the Post Office to
"treasonable correspondence", the blockade of southern ports, the suspension
of the writ of habeas corpus, the arrest and detention of persons "who were
represented to him" as being engaged in or contemplating "treasonable
practices" all this for the most part without the least statutory authorization.
Those actions were justified by the imperatives of his logic, that the President
may, in an emergency thought by him to require it, partially suspend the
constitution. Thus his famous question: "Are all laws but one to be unexecuted,
and the Government itself go to pieces lest that one be violated?" The actions
of Lincoln "assert for the President", according to Corwin, "an initiative of
indefinite scope and legislative in effect in meeting the domestic aspects of a
war emergency." (Corwin, The President: Office & Powers, p. 280 [1948]). The
facts of the civil war have shown conclusively that in meeting the domestic
problems as a consequence of a great war, an indefinite power must be
attributed to the President to take emergency measures. The concept of
"emergency" under which the Chief Executive exercised extraordinary powers
underwent correlative enlargement during the first and second World Wars.
From its narrow concept as an "emergency" in time of war during the Civil War
and World War I, the concept has been expanded in World War II to include
the "emergency" preceding the war and even after it. "The Second World War"
observed Corwin and Koenig, was the First World War writ large, and the
quasi-legislative powers of Franklin Roosevelt as "Commander-in-Chief in
wartime"... burgeoned correspondingly. The precedents were there to be sure,
most of them from the First World War, but they proliferated amazingly. What
is more, Roosevelt took his first step toward war some fifteen months before
our entrance into shooting war. This step occurred in September, 1940, when
he handed over fifty so-called overage destroyers to Great Britain. The truth
is, they were not overage, but had been recently reconditioned and
recommissioned. ... Actually, what President Roosevelt did was to take over
for the nonce Congress's power to dispose of property of the United
States (Article IV, Section 3) and to repeal at least two statutes." (Corwin &
Koenig, The Presidency Today, New York University Press, 1956; sf Corwin,
The President: Office and Powers, 1948.)
The creation of public offices is a power confided by the constitution to
Congress. And yet President Wilson, during World War I on the basis of his
powers under the "Commander-in-Chief" clause created "offices" which were
copied in lavish scale by President Roosevelt in World War II. In April 1942,
thirty-five "executive agencies" were purely of Presidential creation. On June
7, 1941 on the basis of his powers as "Commander-in-Chief", he issued an
executive order seizing the North American Aviation plant of Inglewood,
California, where production stopped as a consequence of a strike. This was
justified by the government as the exercise of presidential power growing out
of the "duty constitutionally and inherently resting upon the President to exert
his civil and military as well as his moral authority to keep the defense efforts
of the United States a going concern" as well as "to obtain supplies for which
Congress has appropriated money, and which it has directed the President to
obtain." On a similar justification, other plants and industries were taken over
by the government. It is true that in Youngstown Sheet & Tube vs. Sawyer
(343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of
the United States did not sustain the claims that the President could, as the
Nation's Chief Executive and Commander-in-Chief of the armed forces, validly
order the seizure of most of the country's steel mills. The Court however did
not face the naked question of the President's power to seize steel plants in
the absence of any congressional enactment or expressions of policy. The
majority of the Court found that this legislative occupation of the field made
untenable the President's claim of authority to seize the plants as an exercise
of inherent executive power or as Commander-in-Chief. Justice Clark, in his
concurrence to the main opinion of the Court, explicitly asserted that the
President does possess, in the absence of restrictive legislation, a residual or
resultant power above or in consequence of his granted powers, to deal with
emergencies that he regards as threatening the national security. The same
view was shared with vague qualification by Justices Frankfurter and Jackson,
two of the concurring Justices. The three dissenting Justices, speaking
through Chief Justice Vinson, apparently went further by quoting with approval
a passage extracted from the brief of the government in the case of United
States vs. Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where
the court sustained the power of the President to order withdrawals from the
public domain not only without Congressional sanction but even contrary to
Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked as an
authority to support the view that the President in times of a grave crisis does
not possess a residual power above or in consequence of his granted powers,
to deal with emergencies that he regards as threatening the national security.
The lesson of the Steel Seizure case, according to Corwin and Koenig,
"Unquestionably ... tends to supplement presidential emergency power to
adopt temporary remedial legislation when Congress has been, in the
judgment of the President, unduly remiss in taking cognizance of and acting
on a given situation." (Corwin and Koenig, The Presidency Today, New York
University Press, 1956).
The accumulation of precedents has thus built up the presidential power under
emergency conditions to "dimensions of executive prerogative as described
by John Locke, of a power to wit, to fill needed gaps in the law, or even to
supersede it so far as may be requisite to realize the fundamental law of nature
and government, namely, that as much as may be all the members of society
are to be preserved." (Corwin and Koenig, The Presidency Today).
In the light of the accumulated precedents, how could it be reasonably argued
therefore, that the President had no power to issue Presidential Decree Nos.
86 and 86-A as well as Proclamation No. 1102, since these measures were
considered indispensable to effect the desired reforms at the shortest time
possible and hasten the restoration of normalcy? It is unavailing for petitioners
to contend that we are not faced by an actual "shooting war" for today's
concept of the emergency which justified the exercise of those powers has of
necessity been expanded to meet the exigencies of new dangers and crisis
that directly threaten the nation's continued and constitutional existence. For
as Corwin observed: "... today the concept of 'war' as a special type of
emergency warranting the realization of constitutional limitations tends to
spread, as it were, in both directions, so that there is not only "the war before
the war," but the 'war after the war.' Indeed, in the economic crisis from which
the New Deal may be said to have issued, the nation was confronted in the
opinion of the late President with an 'emergency greater than war'; and in
sustaining certain of the New Deal measures the Court invoked the justification
of 'emergency.' In the final result constitutional practices of wartime have
moulded the Constitution to greater or less extent for peacetime as well, seem
likely to do so still more pronouncedly under fresh conditions of crisis."
(Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the authority of a constitutional
government is resisted openly by large numbers of citizens who are
engaged in violent insurrection against enforcement of its laws or are
bent on capturing it illegally or destroying it altogether. The third crisis,
one recognized particularly in modern times as sanctioning
emergency action by constitutional governments, iseconomic
depression. The economic troubles which plagued all the countries of
the world in the early thirties involved governmental methods of an
unquestionably dictatorial character in many democracies. It was
thereby acknowledged that an economic existence as a war or a
rebellion. And these are not the only cases which have justified
extraordinary governmental action in nations like the United States.
Fire, flood, drought, earthquake, riots, great strikes have all been dealt
with by unusual and of dictatorial methods. Wars are not won by
debating societies, rebellions are not suppressed by judicial
injunctions, reemployment of twelve million jobless citizens will not be
effected through a scrupulous regard for the tenets of free enterprise,
hardships caused by the eruptions of nature cannot be mitigated
letting nature take its course. The Civil War, the depression of 1933
and the recent global conflict were not and could not have been
successfully resolved by governments similar to those of James
Buchanan, William Howard Taft, or Calvin Coolidge. (Rossiter,
Constitutional Dictatorship Crisis of Government in the Modern
Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that the referendum
in question not having been done inaccordance with the provisions of existing
election laws, which only qualified voters who are allowed to participate, under
the supervision of the Commission on Elections, the new Constitution, should
therefore be a nullity. Such an argument is predicated upon an assumption,
that Article XV of the 1935 Constitution provides the method for the revision of
the constitution, and automatically apply in the final approval of such proposed
new Constitution the provisions of the election law and those of Article V and
X of the old Constitution. We search in vain for any provision in the old charter
specifically providing for such procedure in the case of a total revision or a
rewriting of the whole constitution.
1. There is clearly a distinction between revision and amendment of an existing
constitution. Revision may involve a rewriting of the whole constitution. The
act of amending a constitution, on the other hand, envisages a change of only
specific provisions. The intention of an act to amend is not the change of the
entire constitution but only the improvement of specific parts of the existing
constitution of the addition of provisions deemed essential as a consequence
of new constitutions or the elimination of parts already considered obsolete or
unresponsive to the needs of the times. 1 The 1973 Constitution is not a
mere amendment to the 1935 Constitution. It is a completely new fundamental
charter embodying new political, social and economic concepts.
According to an eminent authority on Political Law, "The Constitution of the
Philippines and that of the United States expressly provide merely for methods
of amendment. They are silent on the subject of revision. But this is not a fatal
omission. There is nothing that can legally prevent a convention from actually
revising the Constitution of the Philippines or of the United States even were
such conventions called merely for the purpose of proposing and submitting
amendments to the people. For in the final analysis, it is the approval of the
people that gives validity to any proposal of amendment or revision." (Sinco,
Philippine Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for the method or
procedure for the revision or for the approval of a new constitution, should it
now be held, that the people have placed such restrictions on themselves that
they are not disabled from exercising their right as the ultimate source of
political power from changing the old constitution which, in their view, was not
responsive to their needs and in adopting a new charter of government to
enable them to rid themselves from the shackles of traditional norms and to
pursue with new dynamism the realization of their true longings and
aspirations, except in the manner and form provided by Congress for previous
plebiscites? Was not the expansion of the base of political participation, by the
inclusion of the youth in the process of ratification who after all constitute the
preponderant majority more in accord with the spirit and philosophy of the
constitution that political power is inherent in the people collectively? As clearly
expounded by Justice Makasiar, in his opinion, in all the cases cited where the
Courts held that the submission of the proposed amendment was illegal due
to the absence of substantial compliance with the procedure prescribed by the
constitution, the procedure prescribed by the state Constitution, is so detailed,
that specified the manner in which such submission shall be made,
the persons qualified to vote for the same, the date of election and other
definite standards, from which the court could safely ascertain whether or not
the submission was in accordance with the Constitution. Thus the case of In
re McConaughy (119 N.E. 408) relied upon in one of the dissenting opinions
involved in the application of the provisions of the state Constitution of
Minnesota which clearly prescribed in detail the procedure under which the
Constitution may be amended or revised. 2 This is not true with our
Constitution. In the case of revision there are no "standards meet for judicial
judgment." 3
The framers of our Constitution were free to provide in the Constitution the
method or procedure for the revision or rewriting of the entire constitution, and
if such was their intention, they could and should have so provided. Precedents
were not wanting. The constitutions of the various states of the American
Union did provide for procedures for their amendment and methods for
their revision. 4
Certainly We cannot, under the guise of interpretation, modify, revise, amend,
remodel or rewrite the 1935 Charter. To declare what the law is, or has been,
is a judicial power, but to declare what the law shall be is not within Our judicial
competence and authority.
Upon the other hand, since our fundamental charter has not provided the
method or procedure for the revision or complete change of the Constitution,
it is evident that the people have reserved such power in themselves. They
decided to exercise it not through their legislature, but through a Convention
expressly chosen for that purpose. The Convention as an independent and
sovereign body has drafted not an amendment but a completely new
Constitution, which decided to submit to the people for approval, not through
an act of Congress, but by means of decrees to be promulgated by the
President. In view of the inability of Congress to act, it was within the
constitutional powers of the President, either as agent of the Constitutional
Convention, or under his authority under martial law, to promulgate the
necessary measures for the ratification of the proposed new Constitution. The
adoption the new Charter was considered as a necessary basis for all the
reforms set in motion under the new society, to root out the causes of unrest.
The imperatives of the emergency underscored the urgency of its adoption.
The people in accepting such procedure and in voting overwhelmingly for the
approval of the new Constitution have, in effect, ratified the method and
procedure taken. "When the people adopt completely revised or new
constitution," said the Court in Wheeler v. Board of Trustees (37 SE 2nd 322,
326-330), "the framing or submission of the instrument is not what gives it
binding force and effect. The fiat of the people, and only the fiat of the people,
can breathe life into a constitution."
This has to be so because, in our political system, all political power is inherent
in the people and free governments are founded on their authority and
instituted for their benefit. Thus Section 1 of Article II of the 1935 Constitution
declares that: "Sovereignty resides in the people and all government authority
emanate from them." Evidently the term people refers to the
entire citizenry and not merely to the electorate, for the latter is only a fraction
of the people and is only an organ of government for the election of
government officials.
III
The more compelling question, however is: Has this Court the authority to
nullify an entire Constitution that is already effective as it has been accepted
and acquiesced in by the people as shown by their compliance with the decree
promulgated thereunder, their cooperation in its implementation, and is now
maintained by the Government that is in undisputed authority and dominance?
Of course it is argued that acquiescence by the people can be deduced from
their acts of conformity, because under a regime of martial law the people are
bound to obey and act in conformity with the orders of the President, and has
absolutely no other choice. The flaw of this argument lies in its application of
a mere theoretical assumption based on the experiences of other nations on
an entirely different factual setting. Such an assumption flounders on the rock
of reality. It is true that as a general rule martial law is the use of military forces
to perform the functions of civil government. Some courts have viewed it as a
military regime which can be imposed in emergency situations. In other words,
martial rule exists when the military rises superior to the civil power in the
exercise of some or all the functions of government. Such is not the case in
this country. The government functions thru its civilian officials. The supremacy
of the civil over the military authority is manifest. Except for the imposition of
curfew hours and other restrictions required for the security of the State, the
people are free to pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the oppressive
features, generally associated with a regime of Martial law in other countries.
"Upon the other hand the masses of our people have accepted it, because of
its manifold blessings. The once downtrodden rice tenant has at long last been
emancipated a consummation devoutly wished by every Philippine
President since the 1930's. The laborer now holds his head high because his
rights are amply protected and respected." * A new sense of discipline has
swiftly spread beyond the corridors of government into the social order.
Responding to the challenges of the New Society, the people have turned in
half a million loose firearms, paid their taxes on undeclared goods and income
in unprecedented numbers and amount, lent their labors in massive
cooperation in land reform, in the repair of dikes, irrigation ditches, roads
and bridges, in reforestation, in the physical transformation of the environment
to make ours a cleaner and greener land. "The entire country is turning into
one vast garden growing food for the body, for thought and for the soul." * More
important the common man has at long last been freed from the incubus of
fear.
"Martial law has paved the way for a re-ordering of the basic social structure
of the Philippines" reported Frank Valeo to the United States Senate.
"President Marcos has been prompt and sure-footed in using the power of
presidential decree under martial law for this purpose. He has zeroed in on
areas which have been widely recognized as prime sources of the nation's
difficulties land tenancy, official corruption, tax evasion and abuse of
oligarchic economic power. Clearly he knows his targets ... there is marked
public support for his leadership..." (Bulletin Today, March 3 and 4, 1973)..
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April
11 issue of The New York Times:
During his first Presidential term (1965-1969), Mr. Marcos was
discouraged by the failure of legislators to approve urgently needed
reforms. He found his second term further frustrated by spread riots,
a Maoist uprising in Luzon and a much more serious Moslem
insurrection in the southern islands from Mindanao across the Sulu
archipelago to the frontier regions of Malaysia and Indonesia. Manila
claims this war is Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of power and makes
no promise as to when he will relinquish them. But, while fettering a
free press, terminating Congress and locking up some opponents
(many of whom were later amnestied), he has hauled the Philippines
out of stagnation.
Sharecropping is being ended as more than three million acres of
arable land are redistributed with state funds. New roads have been
started. The educational system is undergoing revision, a corruption
is diminished. In non-communist Asia it is virtually impossible to wholly
end it and this disagreeable phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society by
creating an agrarian middle-class to replace the archaic sharecropper-
absentee landlord relationship. He is even pushing for a birth control
program with the tacit acceptance of the Catholic Church. He has
started labor reforms and increased wages. (Daily Express, April 15,
1973)
As explained in this writer's opinion of April 24, 1973 on the "Constancia" and
"Manifestation" of counsel for petitioners:
The new Constitution is considered effective "if the norms created in
conformity with it are by and large applied and obeyed. As soon as the old
Constitution loses its effectiveness and the new Constitution has become
effective, the acts that appear with the subjective meaning of creating or
applying legal norms are no longer interpreted by presupposing the old basic
norm, but by presupposing the new one. The statutes issued under the old
Constitution and not taken over are no longer regarded as valid, and the
organs authorized by the old Constitution no longer competent." (Kelsen, Pure
Theory of Law, [1967].)
The essentially political nature of the question is at once made manifest by
understanding that in the final analysis, what is assailed is not merely the
validity of Proclamation No. 1102 of the President, which is merely declaratory
of the fact of approval or ratification, but the legitimacy of the government. It is
addressed more to the framework and political character of this Government
which now functions under the new Charter. It seeks to nullify a Constitution
that is already effective.
In such a situation, We do not see how the question posed by petitioners could
be judicially decided. "Judicial power presupposes an established government
capable of enacting laws and enforcing their execution, and of appointing
judges to expound and administer them. If it decides at all as a court, it
necessarily affirms the existence and authority of the government under which
it is exercising judicial power." (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed.
598.)
In other words, where a complete change in the fundamental law has been
effected through political action, the Court whose existence is affected by such
change is, in the words of Mr. Melville Fuller Weston, "precluded from passing
upon the fact of change by a logical difficulty which is not to be
surmounted." 5 Such change in the organic law relates to the existence of a
prior point in the Court's "chain of title" to its authority and "does not relate
merely to a question of the horizontal distribution of powers." 6 It involves in
essence a matter which "the sovereign has entrusted to the so-called political
departments of government or has reserved to be settled by its own extra
governmental action." 7
The non-judicial character of such a question has been recognized in
American law. "From its earliest opinions this Court has consistently
recognized," said Justice Frankfurter, in his illuminating dissent in Baker v.
Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies
which do not lend themselves to judicial standards and judicial remedies. To
classify the various instances as "political questions" is rather a form of stating
this conclusion than revealing of analysis ... The crux of the matter is that
courts are not fit instruments of decision where what is essentially at stake is
the composition of those large contests of policy traditionally fought out in non-
judicial forums, by which governments and the actions of governments are
made and unmade."
The diversity of views contained in the opinions of the members of this Court,
in the cases at bar, cannot be a case on "right" or "wrong" views of the
Constitution. It is one of attitudes and values. For there is scarcely any
principle, authority or interpretation which has not been countered by the
opposite. At bottom, it is the degree of one's faith in the nation's leadership
and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and
the conclusion of this Court in its judgment of March question becomes
wholly moot except for this consideration, that, when the judges as
individuals or as a body of individuals come to decide which king or
which constitution they will support and assert to represent, it may
often be good judgment for them to follow the lead of the men who as
a practical matter are likely to be looked to by the people as more
representative of themselves and conversely are likely to be more
directly in touch with popular sentiment. If, however, the judges hold
too strong views of their own to be able to take this course, they may
follow their own leads at their own hazard. No question of law is
involved. (Political Questions, 38 Harvard Law Review [1924-25], pp.
305-309.)
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION (G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY PROVIDING
FOR AMENDMENT AND REVISION @
1. Alaska (1959) Art. XIII. Amendment and Revision.
Sec. 1. Amendments. Amendments to this constitution may be proposed by a
two-thirds vote of each house of the legislature. The secretary of state shall
prepare a ballot title and proposition summarizing each proposed amendment,
and shall place them on the ballot for the next statewide election. If a majority
of the votes cast on the proposition favor the amendment, it becomes effective
thirty days after the certification of the election returns by the secretary of state.
Sec. 2. Convention. The legislature may call constitutional conventions at any
time.
Sec. 3. Call by referendum. If during any ten-year period a constitutional
convention has not been held, the secretary of state shall place on the ballot
for the next general election the question: "Shall there be a Constitutional
Convention?" If a majority of the votes cast on the question are in the negative,
the question need not be placed on the ballot until the end of the next ten-year
period. If a majority of the votes cast on the question are in the affirmative,
delegates to the convention shall be chosen at the next regular statewide
election, unless the legislature provides for the election of the election
delegates at a special election. The secretary of state shall issue the call for
the convention. Unless other provisions have been made by law, the call shall
conform as nearly as possible to the act calling the Alaska Constitutional
Convention of 1955, including, but not limited to, number of members, districts,
election and certification of delegates, and submission and ratification
of revisions and ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary power to amend
or revise the constitution, subject only to ratification by the people. No call for
a constitutional convention shall limit these powers of the convention.
2. California (1879) Art. XVIII. Amending and Revising the Constitution.
Sec. 1. Constitutional amendments. Any amendment or amendments to this
Constitution may be proposed in the Senate or Assembly, and if two-thirds of
all the members elected to each of the houses shall vote in favor thereof, such
proposed amendment or amendments shall be entered in their Journals, with
the yeas and nays taken thereon; and it shall be the duty of the Legislature to
submit such proposed amendment or amendments to the people in such
manner, and at such time, and after such publication as may be deemed
expedient. Should more amendments than one be submitted at the same
election they shall be so prepared and distinguished, by numbers or otherwise,
that each can be voted on separately. If the people shall approve and ratify
such amendment or amendments, or any of them, by a majority of the qualified
electors voting thereon such amendment or amendments shall become a part
of this constitution.
Sec. 2. Constitutional convention. Whenever two-thirds of the members
elected to each branch of the Legislature shall deem it necessary to revise this
Constitution, they shall recommend to the electors to vote at the next general
for or against a Convention for that purpose, and if a majority of the electors
voting at such election on the proposition for a Convention shall vote in favor
thereof, the Legislature shall, at its next session, provide by law for calling the
same. The Convention shall consist of a number of delegates not to exceed
that of both branches of the Legislature, who shall be chosen in the same
manner, and have the same qualifications, as Members of the Legislature. The
delegates so elected shall meet within three months after their election at such
place as the Legislature may direct. At a special election to be provided for by
law, the Constitution that may be agreed upon by such Convention shall be
submitted to the people for their ratification or rejection, in such manner as the
Convention may determine. The returns of such election shall, in such manner
as the Convention shall direct, be certified to the Executive of the State, who
shall call to his assistance the Controller, Treasurer, and Secretary of State,
and compare the returns so certified to him; and it shall be the duty of the
Executive to declare, by his proclamation, such Constitution, as may have
been ratified by a majority of all the votes cast at such special election, to be
the Constitution of the State of California.
3. Colorado (1876) Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly may at
any time be a vote of two-thirds of the members elected to each house,
recommend to the electors of the state, to vote at the next general election for
or against a convention to revise, alter and amend this constitution; and if a
majority of those voting on the question shall declare in favor of such
convention, the general assembly shall, at the next session, provide for the
calling thereof. The number of members of the convention shall be twice that
of the senate and they shall be elected in the same manner, at the same
places, and in the same districts. The general assembly shall, in the act calling
the convention, designate the day, hour and place of its meeting; fix the pay of
its members and officers, and provide for the payment of the same, together
with the necessary expenses of the convention. Before proceeding, the
members shall take an oath to support the constitution of the United States,
and of the state of Colorado, and to faithfully discharge their duties as
members of the convention. The qualifications of members shall be the same
as of members of the senate; and vacancies occurring shall be filled in the
manner provided for filling vacancies in the general assembly.
Said convention shall meet within three months after such election and
prepare such revisions, alterations or amendments to the constitution as may
be deemed necessary; which shall be submitted to the electors for their
ratification or rejection at an election appointed by the convention for that
purpose, not less than two nor more than six months after adjournment thereof;
and unless so submitted and approved by a majority of the electors voting at
the election, no such revision, alteration or amendment shall take effect.
Sec. 2. Amendments to constitution; how adopted. Any amendment or
amendments to this constitution may be proposed in either house of the
general assembly, and if the same shall be voted for by two-thirds of all the
members elected to each house, such proposed amendment or amendments,
together with the ayes and noes of each house hereon, shall be entered in full
on their respective journals; the proposed amendment or amendments shall
be published with the laws of that session of the general assembly, and the
secretary of state shall also cause the said amendment or amendments to be
published in full in not more than one newspaper of general circulation in each
county, for four successive weeks previous to the next general election for
members of the general assembly; and at said election the said amendment
or amendments shall be submitted to thequalified electors of the state for their
approval or rejection, and such as are approved by a majority of those voting
thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any general
election, each of said amendments shall be voted upon separately and votes
thereon cast shall be separately counted the same as though but one
amendment was submitted. But the general assembly shall have no power to
propose amendments to more than six articles of this constitution at the same
session.
4. Delaware (1897) Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general assembly;
procedure. Any amendment or amendments to this Constitution may be
proposed in the Senate or House of Representatives; and if the same shall be
agreed to by two-thirds of all the members elected to each House, such
proposed amendment or amendments shall be entered on their journals, with
the yeas and nays taken thereon, and the Secretary of State shall cause such
proposed amendment or amendments to be published three months before
the next general election in at least three newspapers in each County in which
such newspaper shall be published; and if in the General Assembly next after
the said election such proposed amendment or amendments shall upon yea
and nay vote be agreed to by two-thirds of all the members elected to each
House, the same shall thereupon become part of the Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of delegates;
quorum; powers and duties; vacancies. The General Assembly by a two-thirds
vote of all the members elected to each House may from time to time provide
for the submission to the qualified electors of the State at the general election
next thereafter the question, "Shall there be a Convention to revise the
Constitution and amend the same?;" and upon such submission, if a majority
of those voting on said question shall decide in favor of a Convention for such
purpose, the General Assembly at its next session shall provide for the election
of delegates to such convention at the next general election. Such Convention
shall be composed of forty-one delegates, one of whom shall be chosen from
each Representative District by the qualified electors thereof, and two of whom
shall be chosen from New Castle County, two from Kent County and two from
Sussex County by the qualified electors thereof respectively. The delegates
so chosen shall convene at the Capital of the State on the first Tuesday in
September next after their election. Every delegate shall receive for his
services such compensation as shall be provided by law. A majority of the
Convention shall constitute a quorum for the transaction of business. The
Convention shall have the power to appoint such officers, employees and
assistants as it may be deem necessary, and fix their compensation, and
provide for the printing of its documents, journals, debates and proceedings.
The Convention shall determine the rules of its proceedings, and be the judge
of the elections, returns and qualifications of its members. Whenever there
shall be a vacancy in the office of delegate from any district or county by reason
of failure to elect, ineligibility, death, resignation or otherwise, a writ of election
to fill such vacancy shall be issued by the Governor, and such vacancy shall
be filled by the qualified electors of such district or county.
5. Florida (1887) Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the Legislature, at
any regular session, or at any special or extra-ordinary session thereof called
for such purpose either in the governor's original call or any amendment
thereof, may propose the revision or amendment of any portion or portions of
this Constitution. Any such revision or amendment may relate to one subject
or any number of subjects, but no amendment shall consist of more than one
revised article of the Constitution.
If the proposed revision or amendment is agreed to by three-fifths of the
members elected to each house, it shall be entered upon their respective
journals with the yeas and nays and published in one newspaper in each
county where a newspaper is published for two times, one publication to be
made not earlier than ten weeks and the other not later than six weeks,
immediately preceding the election at which the same is to be voted upon, and
thereupon submitted to the electors of the State for approval or rejection at the
next general election, provided, however, that
such revision or amendment may be submitted for approval or rejection in a
special election under the conditions described in and in the manner provided
by Section 3 of Article XVII of the Constitution. If a majority of the electors
voting upon the amendment adopt such amendment the same shall become
a part of this Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature, by a vote
of two-thirds of all the members of both Houses, shall determine that
a revision of this Constitution is necessary, such determination shall be
entered upon their respective Journals, with yea's and nay's thereon. Notice
of said action shall be published weekly in one newspaper in every county in
which a newspaper is published, for three months preceding the next general
election of Representatives, and in those countries where no newspaper is
published, notice shall be given by posting at the several polling precincts in
such counties for six weeks next preceding said election. The electors at said
election may vote for or against the revision in question. If a majority of the
electors so voting be in favor of revision, the Legislature chosen at such
election shall provide by law for a Convention to revise the Constitution, said
Convention to be held within six months after the passage of such law. The
Convention shall consist of a number equal to the membership of the House
of Representatives, and shall be apportioned among the several counties in
the same manner as members of said House.
6. Idaho (1890) Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or amendments
to this Constitution may be proposed in either branch of the legislature, and if
the same shall be agreed to by two-thirds of all the members of each of the
two houses, voting separately, such proposed amendment or amendments
shall, with the yeas and nays thereon, be entered on their journals, and it shall
be the duty of the legislature to submit such amendment or amendments to
the electors of the state at the next general election, and cause the same to
be published without delay for at least six consecutive weeks, prior to said
election, in not less than one newspaper of the general circulation published
in each county; and if a majority of the electors shall ratify the same, such
amendment or amendments shall become a part of this Constitution.
Sec. 3. Revision or amendments by convention. Whenever two-thirds of the
members elected to each branch of the legislature shall deem it necessary to
call a convention to revise or amend this Constitution, they shall recommend
to the electors to vote at the next general election, for or against a convention,
and if a majority of all the electors voting at said election shall have voted for
a convention, the legislature shall at the next session provide by law for calling
the same; and such convention shall consist of a number of members, not less
than double the number of the most numerous branch of the legislature.
7. Iowa (1857) Art. X. Amendments to the Constitution.
Sec. 3. Convention. At the general election to be held in the year one thousand
eight hundred and seventy, and in each tenth year thereafter, and also at such
times as the General Assembly may, by law, provide, the question, "Shall there
be a Convention to revise the Constitution, and amend the same?" shall be
decided by the electors qualified to vote for members of the General Assembly;
and in case a majority of the electors so qualified, voting at such election, for
and against such proposition, shall decide in favor of a Convention for such
purpose, the General Assembly, at its next session, shall provide by law for
the election of delegates to such Convention.
8. Michigan (1909) Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature; submission to
electors. Any amendment or amendments to this constitution may be proposed
in the senate or house of representatives. If the same shall be agreed to by
2/3 of the members elected to each house,
such amendment or amendments shall be entered on the journals,
respectively, with the yeas and nays taken thereon; and the same shall be
submitted to the electors at the next spring or autumn election thereafter, as
the legislature shall direct; and, if a majority of the electors qualified to vote for
members of the legislature voting thereon shall ratify and approve such
amendment or amendments, the same shall become part of the constitution.
Sec. 4. General revision; convention; procedure. At the Biennial Spring
Election to be held in the year 1961, in each sixteenth year thereafter and at
such times as may be provided by law, the question of a General Revisionof
the Constitution shall be submitted to the Electors qualified to vote for
members of the Legislature. In case a majority of the Electors voting on the
question shall decide in favor of a Convention for such purpose, at an Election
to be held not later than four months after the Proposal shall have been
certified as approved, the Electors of each House of Representatives District
as then organized shall Elect One Delegate for each Electors of each
Senatorial District as then organized shall Elect One Delegate for each State
Senator to which the District is entitled. The Delegates so elected shall
convene at the Capital City on the First Tuesday in October next succeeding
such election, and shall continue their sessions until the business of the
convention shall be completed. A majority of the delegates elected shall
constitute a quorum for the transaction of business. ... Noproposed
constitution or amendment adopted by such convention shall be submitted to
the electors for approval as hereinafter provided unless by the assent of a
majority of all the delegates elected to the convention, the yeas and nays being
entered on the journal. Any proposed constitution or amendments adopted by
such convention shall be submitted to the qualified electors in the manner
provided by such convention on the first Monday in April following the final
adjournment of the convention; but, in case an interval of at least 90 days shall
not intervene between such final adjournment and the date of such election.
Upon the approval of such constitution or amendments by a majority of the
qualified electors voting thereon such constitution or amendments shall take
effect on the first day of January following the approval thereof.
9. Minnesota (1857) Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting makes
amendment valid. Whenever a majority of both houses of the legislature shall
deem it necessary to alter or amend this Constitution, they may proposed such
alterations or amendments, which proposed amendments shall be published
with the laws which have been passed at the same session, and said
amendments shall be submitted to the people for their approval or rejection at
any general election, and if it shall appear, in a manner to be provided by law,
that a majority of all the electors voting at said election shall have voted for
and ratified such alterations or amendments, the same shall be valid to all
intents and purposes as a part of this Constitution. If two or more alterations
or amendmentsshall be submitted at the same time, it shall be so regulated
that the voters shall vote for or against each separately.
Sec. 2. Revision of constitution. Whenever two-thirds of the members elected
to each branch of the legislature shall think it necessary to call a convention to
revise this Constitution, they shall recommend to the electors to vote at the
next general election for members of the legislature, for or against a
convention; and if a majority of all the electors voting at said election shall have
voted for a convention, the legislature shall, at their next session, provide by
law for calling the same. The convention shall consist of as many members as
the House of Representatives, who shall be chosen in the same manner, and
shall meet within three months after their election for the purpose aforesaid.
Sec. 3. Submission to people of revised constitution drafted at convention. Any
convention called to revise this constitution shall submit any revision thereof
by said convention to the people of the State of Minnesota for their approval
or rejection at the next general election held not less than 90 days after the
adoption of such revision, and, if it shall appear in the manner provided by
law that three-fifths of all the electors voting on the question shall have voted
for and ratified such revision, the same shall constitute a new constitution of
the State of Minnesota. Without such submission and ratification, said revision
shall be of no force or effect. Section 9 of Article IV of the Constitution shall
not apply to election to the convention.
10. Nevada (1864) Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any amendment or
amendments to this Constitution may be proposed in the Senate or Assembly;
and if the same shall be agreed to by a Majority of all the members elected to
each of the two houses, such proposed amendment or amendments shall be
entered on their respective journals, with the Yeas and Nays taken thereon,
and referred to the Legislature then next to be chosen, and shall be published
for three months next preceding the time of making such choice. And if in the
Legislature next chosen as aforesaid, such proposed amendment or
amendments shall be agreed to by a majority of all the members elected to
each house, then it shall be the duty of the Legislature to submit such proposed
amendment or amendments to the people, in such manner and at such time
as the Legislature shall prescribe; and if the people shall approve and ratify
such amendment or amendments by a majority of the electors qualified to vote
for members of the Legislature voting thereon, such amendment or
amendments shall become a part of the Constitution.
Sec. 2. Convention for revision of constitution; procedure. If at any time the
Legislature by a vote of two-thirds of the Members elected to each house, shall
determine that it is necessary to cause a revision of this entire Constitution they
shall recommend to the electors at the next election for Members of the
Legislature, to vote for or against a convention, and if it shall appear that a
majority of the electors voting at such election, shall have voted in favor of
calling a Convention, the Legislature shall, at its next session provide by law
for calling a Convention to be holden within six months after the passage of
such law, and such Convention shall consist of a number of Members not less
that of both branches of the legislature. In determining what is a majority of the
electors voting such election, reference shall be had to the highest number of
vote cast at such election for the candidates of any office or on any question.
11. New Hamspire (1784)
Art. 99. Revision of constitution provided for. It shall be the duty of the
selectmen, and assessors, of the several towns and places in this state, in
warning the first annual meetings for the choice of senators, after the expiration
of seven years from the adoption of this constitution, as amended, to insert
expressly in the warrant this purpose, among the others for the meeting, to wit,
to take the sense of the qualified voters on the subject of a revision of the
constitution; and, the meeting being warned accordingly, and not otherwise,
the moderator shall take the sense of the qualified voters present as to the
necessity of a revision; and a return of the number of votes for and against
such necessity, shall be made by the clerk sealed up, and directed to the
general court at their then next session; and if, it shall appear to the general
court by such return, that the sense of the people of the state has taken, and
that, in the opinion of the majority of the qualified voters in the state, present
and voting at said meetings, there is a necessity for a revision of the
constitution, it shall be the duty of the general court to call a convention for that
purpose, otherwise the general court shall direct the sense of the people to be
taken, and then proceed in the manner before mentioned. The delegates to be
chosen in the same manner, and proportioned, as the representatives to the
general court; provided that no alterations shall be made in this constitution,
before the same shall be laid before the towns and unincorporated places, and
approved by two thirds of the qualified voters present and voting on the
subject.
12. Oklahoma (1907) Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to vote.
Any amendment or amendments to this Constitution may be proposed in either
branch of the Legislature, and if the same shall be agreed to by a majority of
all the members elected to each of the two houses, such proposed amendment
or amendments shall, with yeas and nays thereon, be entered in their journals
and referred by the Secretary of State to the people for their approval or
rejection, at the next regular general election, except when the Legislature, by
a two-thirds vote of each house, shall order a special election for that purpose.
If a majority of all the electors voting at such election shall vote in favor of any
amendment thereto, it shall thereby become a part of this Constitution.
If two or more amendments are proposed they shall be submitted in such
manner that electors may vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which is
submitted to the voters shall embrace more than one general subject and the
voters shall vote separately for or against each proposal submitted; provided,
however, that in the submission of proposals for the amendment of this
Constitution by articles, which embrace one general subject, each proposed
article shall be deemed a single proposals or proposition
Sec. 2. Constitutional convention to propose amendments or new constitution.
No convention shall be called by the Legislature to propose alterations,
revisions, or amendments to this Constitution, or to propose a new
Constitution, unless the law providing for such convention shall first be
approved by the people on a referendum vote at a regular or special election,
and any amendments, alterations, revisions, or new Constitution, proposed by
such convention, shall be submitted to the electors of the State at a general or
special election and be approved by a majority of the electors voting thereon,
before the same shall become effective Provided, That the question of such
proposed convention shall be submitted to the people at least once in every
twenty years.
13. Oregon (1859) Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or amendments to
this Constitution may be proposed in either branch of the legislative assembly,
and if the same shall be agreed to by a majority of all the members elected to
each of the two houses, such proposed amendment or amendments shall, with
the yeas and nays thereon, be entered in their journals and referred by the
secretary of state to the people for their approval or rejection, at the next
regular election, except when the legislative assembly shall order a special
election for that purpose. If a majority of the electors voting on any such
amendment shall vote in favor thereof, it shall thereby become a part of this
Constitution. The votes for and against such amendment, or amendments,
severally, whether proposed by the legislative assembly or by initiative petition,
shall be canvassed by the secretary of state in the presence of the governor,
and if it shall appear to the governor that the majority of the votes cast at said
election on said amendment, or amendments, severally, are cast in favor
thereof, it shall be his duty forthwith after such canvass, by his proclamation,
to declare the said amendment, or amendments, severally, having received
said majority of votes to have been adopted by the people of Oregon as part
of the Constitution thereof, and the same shall be in effect as a part of the
Constitution from the date of such proclamation. When two or more
amendments shall be submitted in the manner aforesaid to the voters of this
state at the same election, they shall be so submitted that each amendment
shall be voted on separately. No convention shall be called to amend or
propose amendments to this Constitution, or to propose a new Constitution,
unless the law providing for such convention shall first be approved by the
people on a referendum vote at a regular general election. This article shall
not be construed to impair the right of the people to amend this Constitution
by vote upon an initiative petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power to amend
this Constitution granted by section 1, Article IV, and section 1 of this Article,
a revision of all or part of this Constitution may be proposed in either house of
the Legislative Assembly and, if the proposed revision is agreed to by at least
two-thirds of all the members of each house, the proposed revision shall, with
the yeas and nays thereon, be entered in their journals and referred by the
Secretary of State to the people for their approval or rejection, notwithstanding
section 1, Article IV of this Constitution, at the next regular state-wide primary
election, except when the Legislative Assembly orders a special election for
that purpose. A proposed revision may deal with more than one subject and
shall be voted upon as one question. The votes for and against the proposed
revision shall be canvassed by the Secretary of State in the presence of the
Governor and, if it appears to the Governor that the majority of the votes cast
in the election on the proposed revision are in favor of the proposed revision,
he shall, promptly following the canvass, declare, by his proclamation, that the
proposed revision has received a majority of votes and has been adopted by
the people as the Constitution of the State of Oregon, as the case may be.
The revisionshall be in effect as the Constitution or as a part of this Constitution
from the date of such proclamation.
14. Utah (1896) Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any amendments to
his Constitution may be proposed in either house of the Legislature, and if two-
thirds of all the members elected of the two houses, shall vote in favor thereof,
such proposed amendment or amendments shall be entered on their
respective journals with the yeas and nays taken thereon; and the Legislature
shall cause the same to be published in at least one newspaper in every county
of the State, where a newspaper is published, for two months immediately
preceding the next general election, at which time the said amendment or
amendments shall be submitted to the electors of the State, for their approval
or rejection, and if a majority of the electors voting thereon shall approve the
same, such amendment or amendments shall become part of this Constitution.
If two or more amendments are proposed, they shall be so submitted as to
enable the electors to vote on each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever two-thirds of the
members, elected to each branch of the Legislature, shall deem it necessary
to call a convention to revise or amend this Constitution, they shall recommend
to the electors to vote at the next general election, for or against a convention,
and, if a majority of all the electors, voting at such election, shall vote for a
convention. The Legislature, at its next session, shall provide by law for calling
the same. The convention shall consist of not less than the number of
members in both branches of the Legislature.
15. Wyoming (1890) Art. XX. Amendments.
Sec. 1. Procedure for amendments. Any amendment or amendments to this
Constitution may be proposed in either branch of the legislature, and, if the
same shall be agreed to by two-thirds of all the members of the two houses,
voting separately, such proposed amendment or amendments shall, with the
yeas and nays thereon, be entered on their journals, and it shall be the duty of
the legislature to submit such amendment or amendments to the electors of
the state at the next general election, in at least one newspaper of general
circulation, published in each county, and if a majority of the electors shall ratify
the same, such amendment or amendments shall become a part of this
constitution.
Sec. 2. How voted for. If two or more amendments are proposed, they shall be
submitted in such manner that the electors shall vote for or against each of
them separately.
Sec. 3. Constitutional convention; provision for. Whenever two-thirds of the
members elected to each branch of the legislature shall deem it necessary to
call a convention to revise or amend this constitution, they shall recommend
to the electors to vote at the next general election for or against a convention,
and if a majority of all the electors voting at such election shall have voted for
a convention, the legislature shall at the next session provide by a law for
calling the same; and such convention shall consist of a number of members,
not less than double that of the most numerous branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by such convention shall
have no validity until it has been submitted to and adopted by the people.
G.R. No. L-56350 April 2, 1981
SAMUEL C. OCCENA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE
NATIONAL TREASURER, THE DIRECTOR OF PRINTING, respondents.
G.R. No. L-56404 April 2, 1981
RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-
IMBONG, RAY ALLAN T. DRILON, NELSON B. MALANA and GIL M.
TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON
ELECTIONS, respondents.
FERNANDO, C.J.:
The challenge in these two prohibition proceedings against the validity of three
Batasang Pambansa Resolutions1 proposing constitutional amendments,
goes further than merely assailing their alleged constitutional infirmity.
Petitioners Samuel Occena and Ramon A. Gonzales, both members of the
Philippine Bar and former delegates to the 1971 Constitutional Convention that
framed the present Constitution, are suing as taxpayers. The rather
unorthodox aspect of these petitions is the assertion that the 1973 Constitution
is not the fundamental law, the Javellana 2 ruling to the contrary
notwithstanding. To put it at its mildest, such an approach has the arresting
charm of novelty but nothing else. It is in fact self defeating, for if such were
indeed the case, petitioners have come to the wrong forum. We sit as a Court
duty-bound to uphold and apply that Constitution. To contend otherwise as
was done here would be, quite clearly, an exercise in futility. Nor are the
arguments of petitioners cast in the traditional form of constitutional litigation
any more persuasive. For reasons to be set forth, we dismiss the petitions.
The suits for prohibition were filed respectively on March 6 3 and March 12,
1981. 4 On March 10 and 13 respectively, respondents were required to
answer each within ten days from notice. 5 There was a comment on the part
of the respondents. Thereafter, both cases were set for hearing and were duly
argued on March 26 by petitioners and Solicitor General Estelito P. Mendoza
for respondents. With the submission of pertinent data in amplification of the
oral argument, the cases were deemed submitted for decision.
It is the ruling of the Court, as set forth at the outset, that the petitions must be
dismissed.
1. It is much too late in the day to deny the force and applicability of the 1973
Constitution. In the dispositive portion of Javellana v. The Executive
Secretary, 6 dismissing petitions for prohibition and mandamus to declare
invalid its ratification, this Court stated that it did so by a vote of six 7 to four. 8 It
then concluded: "This being the vote of the majority, there is no further judicial
obstacle to the new Constitution being considered in force and effect." 9 Such
a statement served a useful purpose. It could even be said that there was a
need for it. It served to clear the atmosphere. It made manifest that, as of
January 17, 1973, the present Constitution came into force and effect. With
such a pronouncement by the Supreme Court and with the recognition of the
cardinal postulate that what the Supreme Court says is not only entitled to
respect but must also be obeyed, a factor for instability was removed.
Thereafter, as a matter of law, all doubts were resolved. The 1973 Constitution
is the fundamental law. It is as simple as that. What cannot be too strongly
stressed is that the function of judicial review has both a positive and a
negative aspect. As was so convincingly demonstrated by Professors
Black 10 and Murphy, 11 the Supreme Court can check as well as legitimate. In
declaring what the law is, it may not only nullify the acts of coordinate branches
but may also sustain their validity. In the latter case, there is an affirmation that
what was done cannot be stigmatized as constitutionally deficient. The mere
dismissal of a suit of this character suffices. That is the meaning of the
concluding statement in Javellana. Since then, this Court has invariably
applied the present Constitution. The latest case in point is People v.
Sola, 12 promulgated barely two weeks ago. During the first year alone of the
effectivity of the present Constitution, at least ten cases may be cited. 13
2. We come to the crucial issue, the power of the Interim Batasang Pambansa
to propose amendments and how it may be exercised. More specifically as to
the latter, the extent of the changes that may be introduced, the number of
votes necessary for the validity of a proposal, and the standard required for a
proper submission. As was stated earlier, petitioners were unable to
demonstrate that the challenged resolutions are tainted by unconstitutionality.
(1) The existence of the power of the Interim Batasang Pambansa is
indubitable. The applicable provision in the 1976 Amendments is quite explicit.
Insofar as pertinent it reads thus: "The Interim Batasang Pambansa shall have
the same powers and its Members shall have the same functions,
responsibilities, rights, privileges, and disqualifications as the interim National
Assembly and the regular National Assembly and the Members thereof."14 One
of such powers is precisely that of proposing amendments. The 1973
Constitution in its Transitory Provisions vested the Interim National Assembly
with the power to propose amendments upon special call by the Prime Minister
by a vote of the majority of its members to be ratified in accordance with the
Article on Amendments. 15 When, therefore, theInterim Batasang Pambansa,
upon the call of the President and Prime Minister Ferdinand E. Marcos, met
as a constituent body it acted by virtue Of such impotence Its authority to do
so is clearly beyond doubt. It could and did propose the amendments
embodied in the resolutions now being assailed. It may be observed
parenthetically that as far as petitioner Occena is Concerned, the question of
the authority of the Interim Batasang Pambansa to propose amendments is
not new. In Occena v. Commission on Elections, 16 filed by the same petitioner,
decided on January 28, 1980, such a question was involved although not
directly passed upon. To quote from the opinion of the Court penned by Justice
Antonio in that case: "Considering that the proposed amendment of Section 7
of Article X of the Constitution extending the retirement of members of the
Supreme Court and judges of inferior courts from sixty-five (65) to seventy (70)
years is but a restoration of the age of retirement provided in the 1935
Constitution and has been intensively and extensively discussed at
the Interim Batasang Pambansa, as well as through the mass media, it cannot,
therefore, be said that our people are unaware of the advantages and
disadvantages of the proposed amendment." 17
(2) Petitioners would urge upon us the proposition that the amendments
proposed are so extensive in character that they go far beyond the limits of the
authority conferred on the Interim Batasang Pambansa as Successor of
the Interim National Assembly. For them, what was done was to revise and
not to amend. It suffices to quote from the opinion of Justice Makasiar,
speaking for the Court, in Del Rosario v. Commission on Elections 18 to dispose
of this contention. Thus: "3. And whether the Constitutional Convention will
only propose amendments to the Constitution or entirely overhaul the present
Constitution and propose an entirely new Constitution based on an Ideology
foreign to the democratic system, is of no moment; because the same will be
submitted to the people for ratification. Once ratified by the sovereign people,
there can be no debate about the validity of the new Constitution. 4. The fact
that the present Constitution may be revised and replaced with a new one ...
is no argument against the validity of the law because 'amendment' includes
the 'revision' or total overhaul of the entire Constitution. At any rate, whether
the Constitution is merely amended in part or revised or totally changed would
become immaterial the moment the same is ratified by the sovereign
people." 19 There is here the adoption of the principle so well-known in
American decisions as well as legal texts that a constituent body can propose
anything but conclude nothing. 20 We are not disposed to deviate from such a
principle not only sound in theory but also advantageous in practice.
(3) That leaves only the questions of the vote necessary to propose
amendments as well as the standard for proper submission. Again, petitioners
have not made out a case that calls for a judgment in their favor. The language
of the Constitution supplies the answer to the above questions.
The Interim Batasang Pambansa, sitting as a constituent body, can propose
amendments. In that capacity, only a majority vote is needed. It would be an
indefensible proposition to assert that the three-fourth votes required when it
sits as a legislative body applies as well when it has been convened as the
agency through which amendments could be proposed. That is not a
requirement as far as a constitutional convention is concerned. It is not a
requirement either when, as in this case, the Interim Batasang Pambansa
exercises its constituent power to propose amendments. Moreover, even on
the assumption that the requirement of three- fourth votes applies, such
extraordinary majority was obtained. It is not disputed that Resolution No. 1
proposing an amendment allowing a natural-born citizen of the Philippines
naturalized in a foreign country to own a limited area of land for residential
purposes was approved by the vote of 122 to 5; Resolution No. 2 dealing with
the Presidency, the Prime Minister and the Cabinet, and the National
Assembly by a vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the
amendment to the Article on the Commission on Elections by a vote of 148 to
2 with 1 abstention. Where then is the alleged infirmity? As to the requisite
standard for a proper submission, the question may be viewed not only from
the standpoint of the period that must elapse before the holding of the
plebiscite but also from the standpoint of such amendments having been
called to the attention of the people so that it could not plausibly be maintained
that they were properly informed as to the proposed changes. As to the period,
the Constitution indicates the way the matter should be resolved. There is no
ambiguity to the applicable provision: "Any amendment to, or revision of, this
Constitution shall be valid when ratified by a majority of the votes cast in a
plebiscite which shall be held not later than three months after the approval of
such amendment or revision." 21 The three resolutions were approved by
the InterimBatasang Pambansa sitting as a constituent assembly on February
5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of the plebiscite
is set for April 7, 1981. It is thus within the 90-day period provided by the
Constitution. Thus any argument to the contrary is unavailing. As for the people
being adequately informed, it cannot be denied that this time, as in the cited
1980 Occena opinion of Justice Antonio, where the amendment restored to
seventy the retirement age of members of the judiciary, the proposed
amendments have "been intensively and extensively discussed at
the Interim Batasang Pambansa, as well as through the mass media, [ so that
] it cannot, therefore, be said that our people are unaware of the advantages
and disadvantages of the proposed amendment [ s ]." 22
WHEREFORE, the petitions are dismissed for lack of merit. No costs.
Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro
and Melencio-Herrera, JJ., concur.
Abad Santos, J., is on leave.
Separate Opinions
TEEHANKEE, J., dissenting:
I vote to give due course to the petitions at bar and to grant the application for
a temporary restraining order enjoining the plebiscite scheduled for April 7,
1981.
1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the
invalidity of the October 1976 amendments proposals to the 1973 Constitution
for not having been proposed nor adopted in accordance with the mandatory
provisions thereof, as restated by me in Hidalgo vs. Marcos 2 and De la Llana
vs. Comelec 3 , questioning the validity of the December 17, 1977 referendum
exercise as to the continuance in office as incumbent President and to be
Prime Minister after the organization of the Interim Batasang Pambansa as
provided for in Amendment No. 3 of the 1976 Amendments, I am constrained
to dissent from the majority decision of dismissal of the petitions.
I had held in Sanidad that the transcendental constituent power to propose
and approve amendments to the Constitution as well as to set up the
machinery and prescribe the procedure for the ratification of the amendments
proposals has been withheld by the Constitution from the President (Prime
Minister) as sole repository of executive power and that so long as the regular
National Assembly provided for in Article VIII of the Constitution had not come
to existence and the proposals for constitutional amendments were now
deemed necessary to be discussed and adopted for submittal to the people,
strict adherence with the mandatory requirements of the amending process as
provided in the Constitution must be complied with. This means, under the
prevailing doctrine of Tolentino vs. Comelec 4 that the proposed amendments
to be valid must come from the constitutional agency vested with the
constituent power to do so, i.e. in the Interim National Assembly provided in
the Transitory Article XVII which would then have to be convened and not from
the executive power as vested in the President (Prime Minister) from whom
such constituent power has been withheld.
2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine
of Tolentino, the October 1976 constitutional amendments which created the
Interim Batasang Pambansa in lieu of the Interim National Assembly were
invalid since as ruled by the Court therein, constitutional provisions on
amendments "dealing with the procedure or manner of amending the
fundamental law are binding upon the Convention and the other departments
of the government (and) are no less binding upon the people" and "the very
Idea of deparcing from the fundamental law is anachronistic in the realm of
constitutionalism and repugnant to the essence of the rule of law." The
proposed amendments at bar having been adopted by the Interim Batasang
Pambansa as the fruit of the invalid October, 1976 amendments must
necessarily suffer from the same Congenital infirmity.
3. Prescinding from the foregoing and assuming the validity of the proposed
amendments, I reiterate my stand inSanidad that the doctrine of fair and proper
submission firs enunciated by a simple majority of six Justices (of an eleven
member Court prior to the 1973 Constitution which increased the official
composition of the Court to fifteen) in Gonzales vs. Comelec 5 and
subsequently officially adopted by the required constitutional two-thirds
majority vote of the Court (of eight votes, then) in Tolentino is fully applicable
in the case at bar. The three resolutions proposing complex, complicated and
radical amendments of our very structure of government were considered and
approved by the Interim Batasang Pambansa sitting as a constituent assembly
on February 27, 1981. It set the date of the plebiscite for thirty-nine days later
on April 7, 1981 which is totally inadequate and far short of the ninety-day
period fixed by the Constitution for submittal to the people to "sufficiently inform
them of the amendments to be voted upon, to conscientiously deliberate
thereon and to express their will in a genuine manner." 6
4. "The minimum requirements that must be met in order that there can be a
proper submission to the people of a proposed constitutional amendment" as
stated by retired Justice Conrado V. Sanchez in his separate opinion
inGonzales bears repeating as follows: "... we take the view that the words
'submitted to the people for their ratification,' if construed in the light of the
nature of the Constitution a fundamental charter that is legislation direct from
the people, an expression of their sovereign will is that it can only be
amended by the people expressing themselves according to the procedure
ordained by the Constitution. Therefore, amendments must be fairly laid before
the people for their blessing or spurning. The people are not to be mere rubber
stamps. They are not to vote blindly. They must be afforded ample opportunity
to mull over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their conscience
suggest, free from the incubus of extraneous or possibly insidious influences.
We believe the word 'submitted' can only mean that the government, within its
maximum capabilities, should strain every short to inform every citizen of the
provisions to be amended, and the proposed amendments and the meaning,
nature and effects thereof. ... What the Constitution in effect directs is that the
government, in submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten the
people, educate them with respect to their act of ratification or rejection. For,
as we have earlier stated, one thing is submission and another is ratification.
There must be fair submission, intelligent consent or rejection. If with all these
safeguards the people still approve the amendments no matter how prejudicial
it is to them, then so be it. For the people decree their own fate."
Justice Sanchez therein ended the passage with an apt citation that "... The
great men who builded the structure of our state in this respect had the mental
vision of a good Constitution voiced by Judge Cooley, who has said 'A good
Constitution should be beyond the reach of temporary excitement and popular
caprice or passion. It is needed for stability and steadiness; it must yield to the
thought of the people; not to the whim of the people, or the thought evolved in
excitement, or hot blood, but the sober second thought, which alone if the
government is to be safe, can be allowed efficacy ... Changes in government
are to be feard unless benefit is certain.' As Montaign says: 'All great mutation
shake and disorder a state. Good does not necessarily succeed evil; another
evil may succeed and a worse."'
G.R. No. L-21064 June 30, 1970
J. M. TUASON & CO., INC., petitioner-appellee,
vs.
THE LAND TENURE ADMINISTRATION, THE SOLICITOR GENERAL and
THE AUDITOR GENERAL,respondents-appellants.
Araneta, Mendoza and Papa for petitioner-appellee.
Besa, Aguilar and Gancia, Office of the Solicitor General Felix V. Makasiar,
Assistant Solicitor General Frine' C. Zaballero, Solicitor Rosalio A. de Leon
and Special Attorney Magno B. Pablo for respondents-appellants.
RESOLUTION
FERNANDO, J.:
From our decision of February 18, 1970, reversing the judgment of the lower
court holding that Republic Act No. 2616 as amended is unconstitutional,
printed motion for reconsideration was filed by petitioner-appellee on March
31, 1970 reiterating its arguments as to its alleged invalidity for being violative
of the due process and equal protection guarantees. On May 27, 1970, a
detailed opposition to such a motion for reconsideration was filed by the
Solicitor General, the Honorable Felix Q. Antonio, on behalf of respondents-
appellants. Then came a rejoinder of petitioner, on June 15, 1970, to the
pleading of the Solicitor General. The motion for reconsideration is thus ripe
for determination. With due recognition of the vigor and earnestness with which
petitioner argued its motion, based on what it considered to be our applicable
decisions, the Court cannot grant the same. Our decision stands.
1. It was a unanimous Court that could not locate a constitutional infirmity
vitiating Republic Act No. 2616 directing the expropriation of the Tatalon Estate
in Quezon City. There are points of differences in the three written opinions,
but there is none as to the challenged legislative act being invulnerable on the
grounds therein asserted to justify its sought for nullification. While, to repeat,
petitioner apparently remains unconvinced, standing fast on the contentions to
which it would seek to impart greater plausibility, still the intent of the framers
of the Constitutional Convention, as shown not only by the specific provisions
allowing the expropriation of landed estates, but also by the social justice
provision as reflected in our decisions, save possibly Republic vs.
Baylosis, 1preclude a favorable action on the impassioned plea of petitioner for
a reconsideration of our decision. At any rate, petitioner-appellee can take
comfort in the separate opinion of Justice Teehankee, with which four other
members of the Court, including the Chief Justice, are in agreement, to enable
it to raise questions, the answers to which, if its view would be sustained, would
certainly afford sufficient protection to what it believes to be an unconstitutional
infringement on its property rights.
2. It may not be amiss to make more explicit and categorical what was held in
our opinion that Section 4 of Republic Act No. 2616 prohibiting a suit for
ejectment proceedings or the continuance of one already commenced even in
the absence of expropriation proceedings, is unconstitutional, as held
in Cuatico v. Court of Appeals. 2Greater emphasis likewise should be laid on
our holding that while an inaccuracy apparent on the face of the challenged
statute as to the ownership of the Tatalon Estate does not suffice to call for its
invalidity, still to erase even a fanciful doubt on the matter, the statement
therein found in Section 1 of the Act that in addition to petitioner-appellee,
Gregorio Araneta & Co., Inc. and Florencio Deudor, et al. are included, cannot
be understood as conferring on any juridical or natural persons, clearly not
entitled thereto, dominical rights over such property in question.
3. In the aforesaid decision of Cuatico v. Court of Appeals, reference was
made to the amendatory Act, Republic Act No. 3453 to Section 4 as it originally
was worded in Republic Act No. 2616, the amendment consisting of the
following: "Upon approval of this amendatory Act, no ejectment proceedings
shall be instituted or prosecuted against the present occupants of any lot in
said Tatalon Estate, and no ejectment proceedings already commenced shall
be continued, and such lot or any portion thereof shall not be sold by the
owners of said estate to any person other than the present occupant without
the consent of the latter given in a public instrument." 3 The question before
the, Court, according, to the opinion penned by Justice Bautista Angelo, was:
"Are the provisions embodied in the amendatory Act which prescribe that upon
approval of said Act no ejectment proceedings shall be instituted or prosecuted
against any occupant of any lot in the Tatalon Estate, or that no ejectment
proceedings already commenced shall be continued, constitutional and valid
such that it may be said that the Court of Appeals abused its discretion in
denying the petitions for suspension filed by petitioners.?" 4
Then came this portion of the opinion: "This is not the first time that this Court
has been called upon to pass upon the validity of a provision which places a
landowner in the situation of losing his dominical rights over the property
without due process or compensation. We refer to the provisions of Republic
Act 2616 before they were amended by Republic Act No. 3453. Note that, as
originally provided, Republic Act No. 2616 prohibited the institution of an
ejectment proceeding against any occupant of any lot in the Tatalon Estate or
the continuance of one that hasalready been commenced after the
expropriation proceedings shall have been initiated and during the pendency
of the same. On the surface this provision would appear to be valid if the same
is carried out in the light of the provisions of our Constitution relative to cases
of eminent domain, for in that case the rights of the owner of the property to
be expropriated are protected. But then an attempt came to circumvent that
provision in an effort to safeguard or protect the interest of some occupants of
the land, which reached this Court for adjudication, as when some occupants
attempted to block their ejectment upon the plea that the government would
soon start expropriation proceedings even if no sufficient funds were
appropriated to provide compensation to the owner and even if it was not in a
position to take possession of the estate, and so the owner contested the
attempt invoking its rights under the Constitution. And this Court upheld the
contention of the owner by declaring the attempt unconstitutional." 5
The conclusion that inevitably was called for is worded thus: "It is, therefore,
imperative that we declare, as we now do, that Section 4 of Republic Act No.
3453 which prohibits the filing of an ejectment proceeding, or the continuance
of one that has already been commenced, even in the absence of
expropriation proceedings offends our Constitution and, hence, is
unenforceable." 6
What we said then, we reaffirm now, as was indeed evident in our decision
sought to be reconsidered but perhaps not given the importance which, in the
opinion of petitioner-appellee, it was entitled to. Nothing in our decision can be
taken to detract in any wise from the binding force and effect of the Cuatico
ruling which declared unconstitutional Section 4 of Republic Act No. 3453.
4. We likewise ruled that the mistake imputed to Congress in apparently
recognizing the rights of ownership in entities or individuals not possessed of
the same could not invalidate the challenged statute. In the same way, it
cannot be made the basis for non-existent rights of ownership to the property
in question. It is in that sense that, as noted in our decision, no fear need be
entertained that thereby the petitioner-appellee would be adversely affected.
The government certainly would not pay to a party other than the owner the
claim for just compensation which, under the Constitution, it is required to
meet. Neither, then can any party who is not in that situation have any standing
whatsoever. This much is beyond dispute. To repeat, the apprehension
entertained by petitioner-appellee, perhaps indicative of it, excess of caution,
is without legal foundation.
WHEREFORE, the motion for the reconsideration of our decision of February
18, 1970, filed by petitioner-appellee, is denied.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro,
Teehankee and Barredo, JJ., concur.
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.
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla,
Bidin and Cortes, JJ., concur.
Separate Opinions
TEEHANKEE, CJ., concurring:
The main issue resolved in the judgment at bar is whether the 1987
Constitution took effect on February 2, 1987, the date that the plebiscite for its
ratification was held or whether it took effect on February 11, 1987, the date
its ratification was proclaimed per Proclamation No. 58 of the President of the
Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that
by virtue of the provision of Article XVIII, Section 27 of the 1987 Constitution
that it "shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite held for the purpose," the 1987 Constitution took
effect on February 2, 1987, the date of its ratification in the plebiscite held on
that same date.
The thrust of the dissent is that the Constitution should be deemed to "take
effect on the date its ratification shall have been ascertained and not at the
time the people cast their votes to approve or reject it." This view was actually
proposed at the Constitutional Commission deliberations, but was withdrawn
by its proponent in the face of the "overwhelming" contrary view that the
Constitution "will be effective on the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional Commission
fully supports the Court's judgment. It shows that the clear, unequivocal and
express intent of the Constitutional Conunission in unanimously approving (by
thirty-five votes in favor and none against) the aforequoted Section 27 of
Transitory Article XVIII of the 1987 Constitution was that "the act of ratification
is the act of voting by the people. So that is the date of the ratification" and that
"the canvass thereafter [of the votes] is merely the mathematical confirmation
of what was done during the date of the plebiscite and the proclamation of the
President is merely the official confirmatory declaration of an act which was
actually done by the Filipino people in adopting the Constitution when they
cast their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the
original formulation of the committee as indicated in Section 12, unless
there are other commissioners who would like to present
amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert
the following-. "THE PROCLAMATION BY THE PRESIDENT THAT
IT HAS BEEN RATIFIED." And on the last line, after "constitutions,"
add the following: "AND THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If
Commissioner Davide is going to propose an additional sentence, the
committee would suggest that we take up first his amendment to the
first sentence as originally formulated. We are now ready to comment
on that proposed amendment.
The proposed amendment would be to delete the words "its ratification
and in lieu thereof insert the words "THE PROCLAMATION BY THE
PRESIDENT THAT IT HAS BEEN RATIFIED." And the second
amendment would be: After the word "constitutions," add the words"
AND THEIR AMENDMENTS,"
The committee accepts the first proposed amendment. However, we
regret that we cannot accept the second proposed amendment after
the word "constitutions" because the committee feels that when we
talk of all previous Constitutions, necessarily it includes "AND THEIR
AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But,
Madam President, may I request that I be allowed to read the second
amendment so the Commission would be able to appreciate the
change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION
SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE
COMPLETION OF THE CANVASS BY THE COMMISSION ON
ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our
chairman, the committee feels that the second proposed amendment
in the form of a new sentence would not be exactly necessary and the
committee feels that it would be too much for us to impose a time
frame on the President to make the proclamation. As we would recall,
Madam President, in the approved Article on the Executive, there is a
provision which says that the President shall make certain that all laws
shall be faithfully complied. When we approve this first sentence, and
it says that there will be a proclamation by the President that the
Constitution has been ratified, the President will naturally comply with
the law in accordance with the provisions in the Article on the
Executive which we have cited. It would be too much to impose on the
President a time frame within which she will make that declaration. It
would be assumed that the President would immediately do that after
the results shall have been canvassed by the COMELEC.
Therefore, the committee regrets that it cannot accept the second
sentence which the Gentleman is proposing, Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption
that there will be an immediate proclamation of the results by the
President.
MR. MAAMBONG. With that understanding, Madam President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance
of the amendment which makes the effectivity of the new Constitution
dependent upon the proclamation of the President. The effectivity of
the Constitution should commence on the date of the ratification, not
on the date of the proclamation of the President. What is confusing, I
think, is what happened in 1976 when the amendments of 1976 were
ratified. In that particular case, the reason the amendments of 1976
were effective upon the proclamation of the President was that the
draft presented to the people said that the amendment will be effective
upon the proclamation made by the President. I have a suspicion that
was put in there precisely to give the President some kind of leeway
on whether to announce the ratification or not. Therefore, we should
not make this dependent on the action of the President since this will
be a manifestation of the act of the people to be done under the
supervision of the COMELEC and it should be the COMELEC who
should make the announcement that, in fact, the votes show that the
Constitution was ratified and there should be no need to wait for any
proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory
questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be
fixed as to exactly when the Constitution is supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on
the date the votes were supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing,
Madam President. We present the Constitution to a plebiscite, the
people exercise their right to vote, then the votes are canvassed by
the Commission on Elections. If we delete the suggested amendment
which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT
HAS BEEN RATIFIED," what would be, in clear terms, the date when
the Constitution is supposed to be ratified or not ratified, as the case
may be?
FR. BERNAS. The date would be the casting of the ballots. if the
President were to say that the plebiscite would be held, for instance,
on January 19, 1987, then the date for the effectivity of the new
Constitution would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual
issuance of the results by the Commission on Elections which will be
doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is
the act of saying "yes" is done when one casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam
President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner Bernas, we
would like to know from the proponent, Commissioner Davide, if he is
insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment
because I cannot subscribe to the view of Commissioner Bernas, that
the date of the ratification is reckoned from the date of the casting of
the ballots. That cannot be the date of reckoning because it is a
plebiscite all over the country. We do not split the moment of casting
by each of the voters. Actually and technically speaking, it would be
all right if it would be upon the announcement of the results of the
canvass conducted by the COMELEC or the results of the plebiscite
held all over the country. But it is necessary that there be a body which
will make the formal announcement of the results of the plebiscite. So
it is either the President or the COMELEC itself upon the completion
of the canvass of the results of the plebiscite, and I opted for the
President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with
Commissioner Davide. I support the stand of Commissioner Bernas
because it is really the date of the casting of the "yes" votes that is the
date of the ratification of the Constitution The announcement merely
confirms the ratification even if the results are released two or three
days after. I think it is a fundamental principle in political law, even in
civil law, because an announcement is a mere confirmation The act of
ratification is the act of voting by the people. So that is the date of the
ratification. If there should be any need for presidential proclamation,
that proclamation will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the
same support for Commissioner Bernas, because the canvass
thereafter is merely the mathematical confirmation of what was done
during the date of the plebiscite and the proclamation of the President
is merely the official confirmatory declaration of an act which was
actually done by the Filipino people in adopting the Constitution when
they cast their votes on the date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we
have to fix a date for the effectivity of the Constitution. Suppose the
announcement is delayed by, say, 10 days or a month, what happens
to the obligations and rights that accrue upon the approval of the
Constitution? So I think we must have a definite date. I am, therefore,
in favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there
be a necessity for the Commission on Elections to declare the results
of the canvass?
FR. BERNAS. There would be because it is the Commission on
Elections which makes the official announcement of the results.
MR. MAAMBONG. My next question which is the final one is: After the
Commision on Elections has declared the results of the canvass, will
there be a necessity for the President to make a proclamation of the
results of the canvass as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam
President.
MR. MAAMBONG. In other words, the President may or may not make
the proclamation whether the Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the
President would be immaterial because under the law, the
administration of all election laws is under an independent
Commission on Elections. It is the Commission on Elections which
announces the results.
MR. MAAMBONG. But nevertheless, the President may make the
proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts
what the Commission on Elections says, it would have no effect. I
would only add that when we say that the date of effectivity is on the
day of the casting of the votes, what we mean is that the Constitution
takes effect on every single minute and every single second of that
day, because the Civil Code says a day has 24 hours.So that even if
the votes are cast in the morning, the Constitution is really effective
from the previous midnight.
So that when we adopted the new rule on citizenship, the children of
Filipino mothers or anybody born on the date of effectivity of the 1973
Constitution, which is January 17, 1973, are natural-born citizens, no
matter what time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date
is the publication of the results of the canvass by the COMELEC
retroacts to the date of the plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a
definite date. I think it is precisely the proposal of Commissioner
Bernas which speaks of the date (of ratification that would have a
definite date, because there would be no definite date if we depend
upon the canvassing by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite,
be it the COMELEC or the President, would announce that a majority
of the votes cast on a given date was in favor of the Constitution. And
that is the date when the Constitution takes effect, apart from the fact
that the provision on the drafting or amendment of the Constitution
provides that a constitution becomes effective upon ratification by a
majority of the votes cast, although I would not say from the very
beginning of the date of election because as of that time it is
impossible to determine whether there is a majority. At the end of the
day of election or plebiscite, the determination is made as of that time-
the majority of the votes cast in a plebiscite held on such and such a
date. So that is the time when the new Constitution will be considered
ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed
amendment of Commissioner Davide and I support the view of
Commissioner Bernas and the others because the ratification of the
Constitution is on the date the people, by a majority vote, have cast
their votes in favor of the Constitution. Even in civil law, if there is a
contract, say, between an agent and a third person and that contract
is confirmed or ratified by the principal, the validity does not begin on
the date of ratification but it retroacts from the date the contract was
executed.
Therefore, the date of the Constitution as ratified should retroact to the
date that the people have cast their affirmative votes in favor of the
Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide
if he is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of
the opinion that it will be effective on the very day of the plebiscite, I
am withdrawing my amendment on the assumption that any of the
following bodies the Office of the President or the COMELEC will
make the formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the
original provision as stated by the committee.
MR. MAAMBONG. The committee will read again the formulation
indicated in the original committee report as Section 12.
This Constitution shall take effect immediately upon its ratification by
a majority of the votes cast in a plebiscite called for the purpose and
shall supersede all previous Constitutions.
We ask for a vote, Madam President.
VOTING
THE PRESIDENT. As many as are in favor, please raise their hand.
(Several Members raised their hands.)
As many as are against, please raise their hand. (No Member raised
his hand.)
The results show 35 votes in favor and none against; Section 12 is
approved. 2
The Court next holds as a consequence of its declaration at bar that the
Constitution took effect on the date of its ratification in the plebiscite held on
February 2, 1987, that: (1) the Provisional Constitution promulgated on March
25, 1986 must be deemed to have been superseded by the 1987 Constitution
on the same date February 2, 1987 and (2) by and after said date, February
2, 1987, absent any saying clause to the contrary in the Transitory Article of
the Constitution, respondent OIC Governor could no longer exercise the power
to replace petitioners in their positions as Barangay Captain and Councilmen.
Hence, the attempted replacement of petitioners by respondent OIC
Governor's designation on February 8, 1987 of their successors could no
longer produce any legal force and effect. While the Provisional Constitution
provided for a one-year period expiring on March 25, 1987 within which the
power of replacement could be exercised, this period was shortened by the
ratification and effectivity on February 2, 1987 of the Constitution. Had the
intention of the framers of the Constitution been otherwise, they would have
so provided for in the Transitory Article, as indeed they provided for
multifarious transitory provisions in twenty six sections of Article XVIII, e.g.
extension of the six-year term of the incumbent President and Vice-President
to noon of June 30, 1992 for purposes of synchronization of elections, the
continued exercise of legislative powers by the incumbent President until the
convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the
appointments of some seven Court of Appeals Justices, 71 provincial fiscals
and 55 city fiscals reported extended (by) the President on February 2, 1987 .
. . could be open to serious questions," in view of the provisions of Sections 8
(1) and 9, Article VIII of the Constitution which require prior endorsement
thereof by the Judicial and Bar Council created under the Constitution. It
should be stated for the record that the reported date of the appointments,
February 2, 1987, is incorrect. The official records of the Court show that the
appointments of the seven Court of Appeals Justices were transmitted to this
Court on February 1, 1987 and they were all appointed on or before January
31, 1987. 3(Similarly, the records of the Department of Justice likewise show
that the appointment papers of the last batch of provincial and city fiscals
signed by the President in completion of the reorganization of the prosecution
service were made on January 31, 1987 and transmitted to the Department on
February 1, 1987.) It is also a matter of record that since February 2, 1987, no
appointments to the Judiciary have been extended by the President, pending
the constitution of the Judicial and Bar Council, indicating that the Chief
Executive has likewise considered February 2, 1987 as the effective date of
the Constitution, as now expressly declared by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point
with more telling effect than the tones of thunder. She has written another
persuasive opinion, and I am delighted to concur. I note that it in effect affirms
my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I
submitted that the local OICs may no longer be summarily replaced, having
acquired security of tenure under the new Constitution. Our difference is that
whereas I would make that right commence on February 25, 1987, after the
deadline set by the Freedom Constitution, Justice Herrera would opt for
February 2, 1987, when the new Constitution was ratified. I yield to that better
view and agree with her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of
the Provisional Constitution with respect to the tenure of government
functionaries, as follows:
SECTION 2. All elective and appointive officials and employees under
the 1973 Constitution shall continue in office until otherwise provided
by proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such appointment
is made within a period of one year from February 25, 1986.
was cut short by the ratification of the 1987 Constitution, I entertain serious
doubts whether or not that cut-off period began on February 2, 1987, the date
of the plebiscite held to approve the new Charter. To my mind the 1987
constitution took effect on February 11, 1987, the date the same was
proclaimed ratified pursuant to Proclamation No. 58 of the President of the
Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the
purpose and shall supersede all previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the date
its ratification shall have been ascertained, and not at the time the people cast
their votes to approve or reject it. For it cannot be logically said that
Constitution was ratified during such a plebiscite, when the will of the people
as of that time, had not, and could not have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the
government performed acts that would have been valid under the Provisional
Constitution but would otherwise have been void under the 1987 Charter. I
recall, in particular, the appointments of some seven Court of Appeals
Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly
extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of
the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex oficio Members, a representative of the Integrated
 Bar, a professor of law, a retired Member of the Supreme Court, and
a representative of the private sector.
xxx xxx xxx
Sec. 9. The Members of the Supreme Court and judges of lower courts
shall be appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy,
Such appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the
Constitution as well as the amendments thereto from the date it is proclaimed
ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force
and effect on January 17, 1973, the date Proclamation No. 1102, "Announcing
the Ratification by the Filipino People of the Constitution Proposed by the 1971
Constitutional Convention," was issued, although Mr. Justice, now Chief
Justice, Teehankee would push its effectivity date further to April 17, 1973, the
date our decision in Javellana v. Executive Secretary, 3 became final. And this
was so notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite called for the
purpose and, except as herein provided, shall supersede the
Constitution of nineteen-hundred and thirty- five and all amendments
thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no.
1595, proclaiming the ratification of the 1976 amendments submitted in the
plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the
amendments embodied in this certificate as duly ratified by the Filipino people
in the referendum- plebiscite held Oct. 16-17, 1976 and are therefore effective
and in full force and effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President
shall have proclaimed that they have been ratified by a majority of the
votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959,
"Proclaiming the Ratification by the Filipino People of the Amendments of
Section 7, Article X of the Constitution" (lengthening the terms of office of
judges and justices). The Proclamation provides:
[t]he above-quoted amendment has been duly ratified by a majority of
the votes cast in the plebiscite held, together with the election for local
officials, on January 30, 1980, and that said amendment is hereby
declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the
proposed amendment shall take effect on the date the incumbent
President/Prime Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the
Ratification in the Plebiscite of April 7, 1981 of the Amendments to the
Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them
Therefore Effective and in Full Force and Effect." The Proclamation, in
declaring the said amendments duly approved, further declared them
"[e]ffective and in full force and in effect as of the date of this Proclamation," It
shall be noted, in this connection, that under Resolutions Nos. I and 2 of the
Batasang Pambansa, Third Regular Session, Sitting as a Constituent
Assembly, which parented these amendments, the same:
. . .shall become valid as part of the Constitution when approved by a
majority of the votes cast in a plebiscite to be held pursuant to Section
2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino
People, for Ratification or Rejection, the Amendment to the Constitution of the
Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent
Assembly, in its Resolutions Numbered Three, Two, and One, and to
Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass
and proclaim the result of the plebiscite using the certificates
submitted to it, duly authenticated and certified by the Board of
Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the
Plebiscite of January 27, 1984, of the Amendments to the Constitution
Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112
and 113." It states that the amendments:
....are therefore effective and in full force and effect as of the date of
this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and
112 and Section 9, Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the date the President
of the Philippines shall proclaim that they have been ratified by a
majority of the votes cast in the plebiscite held for the purpose, but not
later than three months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when
approved by a majority of the votes cast in an election/plebiscite at
which it is submitted to the people for their ratification pursuant to
Section 2 of Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of
their ratification and not at the time of the plebiscite is a view that is not peculiar
to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March
11, 1947 plebiscite called pursuant to Republic Act No. 73 and the Resolution
of Both Houses (of Congress) adopted on September 18, 1946, was adopted
on April 9,1947. The April 9, 1947 Resolution makes no mention of a
retroactive application.
Accordingly, when the incumbent President (Mrs. Corazon C. Aquino)
proclaimed on February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by
the Constitutional Commission of 1986, including the Ordinance
appended thereto, has been duly ratified by the Filipino people and is
therefore effective and in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it
took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in
passing, that the new Charter was ratified on February 2, 1987, does not in
any way weaken this dissent. As I stated, the remark was said in passing-we
did not resolve the case on account of a categorical holding that the 1987
Constitution came to life on February 2, 1987. In any event, if we did, I now
call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that
the challenged dismissals done on February 8, 1987 were valid, the 1987
Constitution not being then as yet in force.
G.R. No. 77853 January 22, 1990
MARINA PORT SERVICES, INC., petitioner,
vs.
HON. CRESENCIO R. INIEGO, LABOR ARBITER, NATIONAL LABOR
RELATIONS COMMISSION, MANILA AND ASSOCIATED SKILLED AND
TECHNICAL EMPLOYEES UNION-PTGWO, MARCELINO JOSE, JR. and
RAMON DEQUINIA, respondents.
David and Gascon for petitioner.
Pedro A. Lopez for private respondents.
PARAS, J.:
Before Us is a petition for certiorari with preliminary injunction and/or
restraining order which seeks among others to prevent the respondent
Honorable Labor Arbiter from further proceeding with the execution of the
questioned judgment in NLRC Case No. 1-166-86, entitled "Associated Skilled
and Technical Employees Union-PTGWO, and Marcelino Jose, Jr. and Ramon
Dequinia vs. Metro Port Service Inc., (MPSI for short) and Gregorio L. Lim,
General Manager," for lack of jurisdiction.
The facts of the case are as follows:
The petitioner, MARINA Port Services, Inc., (MARINA for brevity) is a domestic
corporation duly organized and existing by virtue of the laws of the Philippines
and duly registered with the Securities and Exchange Commission on July 9,
1986 as evidenced by its certificate of registration, with offices at the South
Harbor, Port Area, Manila and has been the present arrastre operator at the
South Harbor, Port Area, Manila since July 21, 1986.
The respondent Hon. Cresencio R. Iniego is a Labor Arbiter of the NLRC-NCR
Manila who rendered the questioned decision against the herein petitioner in
the NLRC Case No. 1-166-86. The respondent Union is a labor organization
duly registered with the Bureau of Labor Relations, M.O.L.E. and is the
complainant Union in NLRC-NCR Case No. 1-166-86 pending before the
NLRC-NCR, Manila and is the collective representative of the individual
complainants, Marcelino Jose, Jr., and Ramon Dequinia, now co-respondents
in this petition.
The records of the case will show that:
On January 14,1986, a complaint entitled, "Associated Skilled & Technical
Employees Union-PTGWO, and Marcelino Jose, Jr., and Ramon Dequinia,
complainants vs. Metro Port Service Inc. (MPSI for brevity) and Gregorio L.
Lim, General Manager, Respondents" was filed with the National Labor
Relations Commission, National Capital Region, Manila and the same was
docketed as NLRC-NCR Case No. 1-166-86.
On May 28,1986, the complainants submitted with the NLRC their position
paper. Thereafter, on April 28, 1986 the respondents Metro Port Services, Inc.
and Gregorio L. Lim filed their corresponding position papers.
Pending hearing of the instant case, the contract of the Metro Port Services,
Inc. as operator of the Arrastre Service in the South Harbor, was cancelled by
the Philippine Ports Authority due to gross violation of the terms and conditions
of the management contract and poor management. Said contract to operate
the arrastre service in South Harbor, Manila, was awarded by the Philippine
Ports Authority to the MARINA Port Services, Inc. with the condition that it shall
absorb all the employees and shall be liable for all benefits provided for under
the existing Collective Bargaining Agreement.
After exchanges of pleadings and arguments by and between the parties in
this NLRC Case No. 1-166-86, more specifically on February 17, 1987, a
decision was rendered by the respondent Labor Arbiter Cresencio R. Iniego,
which was received by the petitioner on March 25, 1987. The dispositive
portion of said decision states:
WHEREFORE, in view of the foregoing circumstances, judgment is
hereby rendered ordering the Metro Port Services and the MARINA
Port Services, Inc. to pay the backwages of the complainants jointly
and severally to be reckoned from the expiration of their sixty (60) days
suspension. The MARINA Port Services, Inc., is hereby ordered to
absorb or reinstate the complainants to their former positions (p.
43, Rollo).
The petitioner assails the decision as follows:
The respondent Labor Arbiter deliberately and capriciously acted without or in
excess of his jurisdiction and/or gravely abused his discretion amounting to
lack of jurisdiction in rendering his decision against the petitioner (MARINA)
which was not a party at all in this case before him.
Secondly, respondent Labor Arbiter violated due process by not giving
MARINA an opportunity to be heard.
Finally, petitioner claims that certiorari is the proper remedy for the Labor
Arbiter never acquired jurisdiction over it.
This Court is convinced MARINA never had a chance to defend itself, not
having been furnished any notice, summons, or pleadings in the case, except
the assailed decision. But despite this fact, it is clear from the "contract to
operate the arrastre service in the South Harbor" as awarded by the Philippine
Ports Authority to petitioner MARINA Port Services, Inc., that:
7. Labor and personnel of previous operator, except those
positions of trust and confidence, shall be absorbed by
grantee. Labor or employees benefits provided for under
existing CBA shall likewise be honored.
xxx xxx xxx
14. Grantee shall be responsible for all obligations, liabilities
or claims arising out of any transactions or undertakings in
connection with their cargo handling operations as of the
actual date of transfer thereof to grantee. (Annex E-1, p.
37. Rollo)
When the words and language of documents are clear and plain or
readily understandable by an ordinary reader thereof, there is
absolutely no room for interpretation or construction anymore
(Leveriza vs. Intermediate Appellate Court, 157 SCRA 282). And
therefore, when said contract was accepted by the grantee-petitioner,
it had stepped in the shoes of its predecessor. Accordingly, petitioner
had bound itself to whatever judgment that awaited MPSI in the labor
case.
WHEREFORE, the petition is hereby DISMISSED. The February 17, 1987
decision of respondent Labor Arbiter is AFFIRMED, insofar as it concerns and
affects the petitioner herein.
SO ORDERED.
Melencio-Herrera, Padilla and Regalado, JJ., concur.
Sarmiento J., took no part.
G.R. No. 77853 January 22, 1990
MARINA PORT SERVICES, INC., petitioner,
vs.
HON. CRESENCIO R. INIEGO, LABOR ARBITER, NATIONAL LABOR
RELATIONS COMMISSION, MANILA AND ASSOCIATED SKILLED AND
TECHNICAL EMPLOYEES UNION-PTGWO, MARCELINO JOSE, JR. and
RAMON DEQUINIA, respondents.
David and Gascon for petitioner.
Pedro A. Lopez for private respondents.
PARAS, J.:
Before Us is a petition for certiorari with preliminary injunction and/or
restraining order which seeks among others to prevent the respondent
Honorable Labor Arbiter from further proceeding with the execution of the
questioned judgment in NLRC Case No. 1-166-86, entitled "Associated Skilled
and Technical Employees Union-PTGWO, and Marcelino Jose, Jr. and Ramon
Dequinia vs. Metro Port Service Inc., (MPSI for short) and Gregorio L. Lim,
General Manager," for lack of jurisdiction.
The facts of the case are as follows:
The petitioner, MARINA Port Services, Inc., (MARINA for brevity) is a domestic
corporation duly organized and existing by virtue of the laws of the Philippines
and duly registered with the Securities and Exchange Commission on July 9,
1986 as evidenced by its certificate of registration, with offices at the South
Harbor, Port Area, Manila and has been the present arrastre operator at the
South Harbor, Port Area, Manila since July 21, 1986.
The respondent Hon. Cresencio R. Iniego is a Labor Arbiter of the NLRC-NCR
Manila who rendered the questioned decision against the herein petitioner in
the NLRC Case No. 1-166-86. The respondent Union is a labor organization
duly registered with the Bureau of Labor Relations, M.O.L.E. and is the
complainant Union in NLRC-NCR Case No. 1-166-86 pending before the
NLRC-NCR, Manila and is the collective representative of the individual
complainants, Marcelino Jose, Jr., and Ramon Dequinia, now co-respondents
in this petition.
The records of the case will show that:
On January 14,1986, a complaint entitled, "Associated Skilled & Technical
Employees Union-PTGWO, and Marcelino Jose, Jr., and Ramon Dequinia,
complainants vs. Metro Port Service Inc. (MPSI for brevity) and Gregorio L.
Lim, General Manager, Respondents" was filed with the National Labor
Relations Commission, National Capital Region, Manila and the same was
docketed as NLRC-NCR Case No. 1-166-86.
On May 28,1986, the complainants submitted with the NLRC their position
paper. Thereafter, on April 28, 1986 the respondents Metro Port Services, Inc.
and Gregorio L. Lim filed their corresponding position papers.
Pending hearing of the instant case, the contract of the Metro Port Services,
Inc. as operator of the Arrastre Service in the South Harbor, was cancelled by
the Philippine Ports Authority due to gross violation of the terms and conditions
of the management contract and poor management. Said contract to operate
the arrastre service in South Harbor, Manila, was awarded by the Philippine
Ports Authority to the MARINA Port Services, Inc. with the condition that it shall
absorb all the employees and shall be liable for all benefits provided for under
the existing Collective Bargaining Agreement.
After exchanges of pleadings and arguments by and between the parties in
this NLRC Case No. 1-166-86, more specifically on February 17, 1987, a
decision was rendered by the respondent Labor Arbiter Cresencio R. Iniego,
which was received by the petitioner on March 25, 1987. The dispositive
portion of said decision states:
WHEREFORE, in view of the foregoing circumstances, judgment is
hereby rendered ordering the Metro Port Services and the MARINA
Port Services, Inc. to pay the backwages of the complainants jointly
and severally to be reckoned from the expiration of their sixty (60) days
suspension. The MARINA Port Services, Inc., is hereby ordered to
absorb or reinstate the complainants to their former positions (p.
43, Rollo).
The petitioner assails the decision as follows:
The respondent Labor Arbiter deliberately and capriciously acted without or in
excess of his jurisdiction and/or gravely abused his discretion amounting to
lack of jurisdiction in rendering his decision against the petitioner (MARINA)
which was not a party at all in this case before him.
Secondly, respondent Labor Arbiter violated due process by not giving
MARINA an opportunity to be heard.
Finally, petitioner claims that certiorari is the proper remedy for the Labor
Arbiter never acquired jurisdiction over it.
This Court is convinced MARINA never had a chance to defend itself, not
having been furnished any notice, summons, or pleadings in the case, except
the assailed decision. But despite this fact, it is clear from the "contract to
operate the arrastre service in the South Harbor" as awarded by the Philippine
Ports Authority to petitioner MARINA Port Services, Inc., that:
7. Labor and personnel of previous operator, except those
positions of trust and confidence, shall be absorbed by
grantee. Labor or employees benefits provided for under
existing CBA shall likewise be honored.
xxx xxx xxx
14. Grantee shall be responsible for all obligations, liabilities
or claims arising out of any transactions or undertakings in
connection with their cargo handling operations as of the
actual date of transfer thereof to grantee. (Annex E-1, p.
37. Rollo)
When the words and language of documents are clear and plain or
readily understandable by an ordinary reader thereof, there is
absolutely no room for interpretation or construction anymore
(Leveriza vs. Intermediate Appellate Court, 157 SCRA 282). And
therefore, when said contract was accepted by the grantee-petitioner,
it had stepped in the shoes of its predecessor. Accordingly, petitioner
had bound itself to whatever judgment that awaited MPSI in the labor
case.
WHEREFORE, the petition is hereby DISMISSED. The February 17, 1987
decision of respondent Labor Arbiter is AFFIRMED, insofar as it concerns and
affects the petitioner herein.
SO ORDERED.
Melencio-Herrera, Padilla and Regalado, JJ., concur.
Sarmiento J., took no part.
G.R. No. L-49 November 12, 1945
WILLIAM F. PERALTA, petitioner,
vs.
THE DIRECTOR OF PRISONS, respondent.
William F. Peralta in his own behalf.
Office of the Solicitor General Taada for respondent.
City Fiscal Mabanag as amicus curiae.
FERIA, J.:
Petitioner-defendant, a member of the Metropolitan Constabulary of Manila
charged with the supervision and control of the production, procurement and
distribution of goods and other necessaries as defined in section 1 of Act No.
9 of the National Assembly of the so-called Republic of the Philippines, was
prosecuted for the crime of robbery as defined and penalized by section 2 (a)
of Act No. 65 of the same Assembly. He was found guilty and sentenced to life
imprisonment, which he commenced to serve on August 21, 1944, by the Court
of Special and Exclusive Criminal Jurisdiction, created in section 1 of
Ordinance No. 7 promulgated by the President of the so-called Republic of the
Philippines, pursuant to the authority conferred upon him by the Constitution
and laws of the said Republic. And the procedure followed in the trial was the
summary one established in Chapter II of Executive Order No. 157 of the
Chairman of the Executive Commission, made applicable to the trial violations
of said Act No. 65 by section 9 thereof and section 5 of said Ordinance No. 7.
The petition for habeas corpus is based on the ground that the Court of Special
and Executive Criminal Jurisdiction created by Ordinance No. 7 "was a political
instrumentality of the military forces of the Japanese Imperial Army, the aims
and purposes of which are repugnant to those aims and political purposes of
the Commonwealth of the Philippines, as well as those of the United States of
America, and therefore, null and void ab initio," that the provisions of said
Ordinance No. 7 are violative of the fundamental laws of the Commonwealth
of the Philippines and "the petitioner has been deprived of his constitutional
rights"; that the petitioner herein is being punished by a law created to serve
the political purpose of the Japanese Imperial Army in the Philippines, and
"that the penalties provided for are much (more) severe than the penalties
provided for in the Revised Penal Code."
The Solicitor General, in his answer in behalf of the respondent, states that, in
his own opinion, for the reasons expressed in his brief in the case of People of
the Philippines, plaintiff-appellant, vs. Benedicto Jose y Santos, defendant-
appellee, G. R. No. L-22 (p. 612, post), the acts and proceedings taken and
had before the said Court of Special and Exclusive Criminal Jurisdiction which
resulted in the conviction and imprisonment of the herein petitioner, should
now be denied force and efficacy, and therefore the petition for habeas
corpus should be granted. The reasons advanced by the Solicitor General in
said brief and in his reply memorandum in support of his contention are, that
the Court of Special and Exclusive Criminal Jurisdiction created, and the
summary procedure prescribed therefor, by said Ordinance No. 7 in
connection with Executive Order No. 157 of the Chairman of the Executive
Commission are tinged with political complexion; that the procedure
prescribed in Ordinance No. 7 does not afford a fair trial, violates the
Constitution of the Commonwealth, and impairs the Constitutional rights of
accused persons under their legitimate Constitution. And he cites, in support
of this last proposition, the decisions of the Supreme Court of the United States
in the cases of Texas vs. White (7 Wall., 700, 743); Horn vs. Lockart (17 Wall.,
570, 581); United States vs. Home Insurance Co. (22 Wall., 99, 104);
Sprott vs.United States (20 Wall., 459).
The City Fiscal of Manila appeared before this Court as amicus curiae. In his
memorandum he submits that the petition for habeas corpus be denied on the
following grounds: That the Court of Special and Exclusive Criminal
Jurisdiction and the Acts, Ordinances and Executive Orders, creating it are not
of a political complexion, for said Court was created, and the crimes and
offenses placed under its jurisdiction were penalized heavily, in response to
an urgent necessity, according to the preamble of Ordinance No. 7; that the
right to appeal in a criminal case is not a constitutional right; and that the
summary procedure established in said Ordinance No. 7 is not violative of the
provision of Article III, section 1 (18) of the Constitution of the Commonwealth,
to the effect that no person shall be compelled to be a witness against himself,
nor of the provision of section 1 (1) of the same Article that no person shall be
deprived of life, liberty, or property without due process of law.
The features of the summary procedure adopted by Ordinance No. 7, assailed
by the petitioner and the Solicitor General as impairing the constitutional rights
of an accused are: that court may interrogate the accused and witnesses
before trial in order to clarify the points in dispute; that the refusal of the
accused to answer the questions may be considered unfavorable to him; that
if from the facts admitted at the preliminary interrogatory it appears that the
defendant is guilty, he may be immediately convicted; and that the sentence
of the sentence of the court is not appealable, except in case of death penalty
which cannot be executed unless and until reviewed and affirmed by a special
division of the Supreme Court composed of three Justices.
Before proceeding further, and in order to determine the law applicable to the
questions involved in the present case, it is necessary to bear in mind the
nature and status of the government established in these Islands by the
Japanese forces of occupation under the designation of Republic of the
Philippines.
In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp.
113, 127, ante), recently decided, this Court, speaking through the Justice who
pens this decision, held:
In view of the foregoing, it is evident that the Philippines Executive
Commission, which was organized by Order No. 1, issued on January
23, 1942, by the Commander of the Japanese forces, was a civil
government established by the military forces of occupation and
therefore a de facto government of the second kind. It was not different
from the government established by the British in Castine, Maine, or
by the United States in Tanpico, Mexico. As Halleck says, "the
government established over an enemy's territory during the military
occupation may exercise all the powers given by the laws of war to the
conqueror over the conquered, and is subject to all restrictions which
that code imposes. It is of little consequence whether such
government be called a military or civil government. Its character is
the same and the source of its authority the same. In either case it is
a government imposed by the laws of war and so far as it concerns
the inhabitants of such territory or the rest of the world those laws
alone determine the legality or illegality of its acts." (vol. 2 p. 466.) The
fact that the Philippine Executive Commission was a civil and not a
military government and was run by Filipinos and not by Japanese
nationals is of no consequence.
And speaking of the so-called Republic of the Philippines in the same decision,
this Court said:
The so-called Republic of the Philippines, apparently established and
organized as a sovereign state independent from any other
government by the Filipino people, was, in truth and reality, a
government established by the belligerent occupant or the Japanese
forces of occupation. It was of the same character as the Philippine
Executive Commission, and the ultimate source of its authority was
the same the Japanese military authority and government. As
General MacArthur stated in his proclamation of October 23, 1944, a
portion of which has been already quoted, "under enemy duress, a so-
called government styled as the 'Republic of the Philippines' was
established on October 14, 1943, based upon neither the free
expression of the peoples" will nor the sanction of the Government of
the United States.' Japan had no legal power to grant independence
to the Philippines or transfer the sovereignty of the United States to,
or recognize the latent sovereignty of the Filipino people, before its
military occupation and possession of the Islands had matured into an
absolute and permanent dominion or sovereignty by a treaty of peace
or other means recognized in the law of nations.
As the so-called Republic of the Philippines was a de facto government of the
second kind (of paramount force), as the government established in Castine,
Maine, during its occupation by the British forces and as that of Tampico,
Mexico, occupied during the war with that the country by the United State
Army, the question involved in the present case cannot be decided in the light
of the Constitution of the Commonwealth Government; because the belligerent
occupant was totally independent of the constitution of the occupied territory
in carrying out the administration over said territory; and the doctrine laid down
by the Supreme Court of the United States in the cases involving the validity
of judicial and legislative acts of the Confederate States, considered as de
factogovernments of the third kind, does not apply to the acts of the so-called
Republic of the Philippines which is a de facto government of paramount force.
The Constitution of the so-called Republic of the Philippines can neither be
applied, since the validity of an act of a belligerent occupant cannot be tested
in the light of another act of the same occupant, whose criminal jurisdiction is
drawn entirely from the law martial as defined in the usages of nations.
In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court of
the United States held that, by the military occupation of Castine, Maine, the
sovereignty of the United States in the territory was, of course, suspended,
and the laws of the United States could no longer be rightfully enforced there
or be obligatory upon the inhabitants who remained and submitted to the
belligerent occupant. By the surrender the inhabitants passed under a
temporary allegiance to the British government, and were bound by such laws,
and such only, as it chose to recognize and impose. And Oppenheim, in his
Treatise on International Law, says that, in carrying out the administration over
the occupied territory and its inhabitants, "the (belligerent) occupant is totally
independent of the constitution and the laws of the territory, since occupation
is an aim of warfare, and the maintenance and safety of his forces, and the
purpose of war, stand in the foreground of his interest and must be promoted
under all circumstances or conditions. (Vol. II, Sixth Edition, Revised, 1944, p.
342.)
The doctrine laid down in the decisions of the Supreme Court of the United
States (in the cases of Texas vs.White, 7 Wall., 700; Horn vs. Lockart, 17 Wall.,
570; Williams vs. Bruffy, 96 U. S., 176 United States vs. Home Insurance Co.,
20 Wall., 249; Sprott vs. United States, 20 Wall., 459, and others) that the
judicial and legislative acts of the Confederate States which impaired the rights
of the citizens under the Constitution of the United States or of the States, or
were in conflict with those constitutions, were null and void, is not applicable
to the present case. Because that doctrine rests on the propositions that "the
concession (of belligerency) made to the Confederate Government . . .
sanctioned no hostile legislation . . . and it impaired in no respect the rights of
loyal and citizens as they existed at the commencement of hostilities"
(Williams vs. Bruffy, supra);that the Union is perpetual and indissoluble, and
the obligation of allegiance to the to the estate and obedience to her laws and
the estate constitution, subject to the Constitution of the United States,
remained unimpaired during the War of Secession (Texas vs. White, supra)
and that the Confederate States "in most, if not in all instances, merely
transferred the existing state organizations to the support of a new and
different national head. the same constitution, the same laws for the protection
of the property and personal rights remained and were administered by the
same officers." (Sprott vs. United States, supra). In fine, because in the case
of the Confederate States, the constitution of each state and that of the United
States or the Union continued in force in those states during the War of
Secession; while the Constitution of the Commonwealth Government was
suspended during the occupation of the Philippines by the Japanese forces of
the belligerent occupant at regular war with the United States.
The question which we have to resolve in the present case in the light of the
law of nations are, first, the validity of the creation of the Court of Special and
Exclusive Criminal Jurisdiction, and of the summary procedure adopted for
that court; secondly, the validity of the sentence which imprisonment during
the Japanese military occupation; and thirdly, if they were then valid, the effect
on said punitive sentence of the reoccupation of the Philippines and the
restoration therein of the Commonwealth Government.
(1) As to the validity of the creation of the Court of Special and Exclusive
Criminal Jurisdiction by Ordinance No. 7, the only factor to be considered is
the authority of the legislative power which promulgated said law or ordinance.
It is well established in International Law that "The criminal jurisdiction
established by the invader in the occupied territory finds its source neither in
the laws of the conquering or conquered state, it is drawn entirely form the
law martial as defined in the usages of nations. The authority thus derived can
be asserted either through special tribunals, whose authority and procedure is
defined in the military code of the conquering state, or through the ordinary
courts and authorities of the occupied district." (Taylor, International Public
Law, p. 598.) The so-called Republic of the Philippines, being a governmental
instrumentality of the belligerent occupant, had therefore the power or was
competent to create the Court of Special and Exclusive Criminal Jurisdiction.
No question may arise as to whether or not a court is of political complexion,
for it is mere a governmental agency charged with the duty of applying the law
to cases falling within its jurisdiction. Its judgments and sentences may be of
political complexion, or not depending upon the nature or character of the law
so applied. There is no room for doubt, therefore, as to the validity of the
creation of the court in question.
With respect to the Summary procedure adopted by Ordinance No. 7, and
followed in the trial of the case which resulted in the conviction of the herein
petitioner, there is also no question as to the power or competence of the
belligerent occupant to promulgate the law providing for such procedure. For
"the invader deals freely with the relations of the inhabitants of the occupied
territory towards himself . . . for his security also, he declares certain acts, not
forbidden by the ordinary laws of the country, to be punishable; and he so far
suspends the laws which guard personal liberty as is required for the summary
punishment of any one doing such acts." (Hall's International Law, seventh
ed., p. 5000). A belligerent "occupant may where necessary, set up military
courts instead of the ordinary courts; and in case, and in so far as, he admits
the administration of justice by the ordinary courts, he may nevertheless, so
far as is necessary for military purposes, or for the maintenance of public order
and safety temporarily alter the laws, especially the Criminal Law, on the basis
of which justice is administered as well as the laws regarding procedure."
(Oppenheim's International Law, Vol. II, sixth edition, 1944, p.349.)
No objection can be set up to the legality of its provisions in the light of the
precepts of our Commonwealth Constitution relating to the rights of accused
under that Constitution, because the latter was not in force during the period
of the Japanese military occupation, as we have already stated. Nor may said
Constitution be applied upon its revival at the time of the re-occupation of the
Philippines by virtue of the principle of postliminium because "a constitution
should operate prospectively only, unless the words employed show a clear
intention that it should have a retrospective effect" (Cooley's Constitutional
Limitations, seventh edition, page 97, and cases quoted and cited in the
footnote), especially as regards laws of procedure applied to cases already
terminated completely.
The only restrictions or limitations imposed upon the power of a belligerent
occupant to alter the laws or promulgate new ones, especially the criminal law
as well as the laws regarding procedure, so far as it is necessary for military
purposes, that is, for his control of the territory and the safety and protection
of his army, are those imposed by the Hague Regulations, the usages
established by civilized nations, the laws of humanity and the requirements of
public conscience. It is obvious that the summary procedure under
consideration does not violate those precepts. It cannot be considered as
violating the laws of humanity and public conscience, for it is less
objectionable, even from the point of view of those who are used to the
accusatory system of criminal procedure than the procedural laws based on
the semi-inquisitorial or mixed system prevailing in France and other countries
in continental Europe.
(2) The validity of the sentence rendered by the Court of Special and Exclusive
Criminal Jurisdiction which imposes life imprisonment upon the herein
petitioner, depends upon the competence or power of the belligerent occupant
to promulgate Act No. 65 which punishes the crime of which said petitioner
was convicted.
Westlake says that Article XLIII, Section III, of the Hague Conventions of 1907
"indicates that the laws to be enforced by the occupant consist of, first, the
territorial law in general, as that which stands to the public order and social
and commercial life of the district in a relation of mutual adaptation, so that any
needless displacement of it would defeat the object which the invader is
enjoined to have in view, and secondly, such variations of the territorial law as
may be required by real necessity and are not expressly prohibited by any of
the rules which will come before us. Such variations will naturally be greatest
in what concerns the relation of the communities and individuals within the
district to the invading army and its followers, it being necessary for the
protection of the latter, and for the unhindered prosecution of the war by them,
that acts committed to their detriment shall not only lose what justification the
territorial law might give them as committed against enemies, but shall be
repressed more severely than the territorial law would repress acts committed
against fellow subjects. Indeed the entire relation between the invaders and
the invaded, so far as it may fall within the criminal department whether by the
intrinsic nature of the acts done or in consequence of the regulations made by
the invaders, may be considered as taken out of the territorial law and referred
to what is called martial law." (Westlake, International Law, Part II, War, p. 96.)
According to Hyde (International Law, Vol. II, p. 386), the term "martial law," in
so far as it is used to describe any fact in relation to belligerent occupation,
does not refer to a particular code or system of law, or to a special agency
entrusted with its administration. The term merely signifies that the body of law
actually applied, having the sanction of military authority, is essentially martial.
All law, by whomsoever administered, in an occupied district martial law; and
it is none the less so when applied by civil courts in matters devoid of special
interest to the occupant. The words "martial law" are doubtless suggestive of
the power of the occupant to share the law as he sees fit; that is, to determine
what shall be deemed lawful or unlawful acts, to establish tests for ascertaining
the guilt of offenders, to fix penalties, and generally to administer justice
through such agencies as the found expedient.
And the United States Rules of Land Warfare provide that the belligerent
occupant may promulgate such new laws and regulations as military necessity
demands, and in this class will be included those laws which come into being
as a result of military rule; that is, those which establish new crimes and
offenses incident to a state of war and are necessary for the control of the
country and the protection of the army, for the principal object of the occupant
is to provide for the security of the invading army and to contribute to its support
and efficiency and the success of its operations. (Pub. 1940, pp. 76, 77.)
From the above it appears clear that it was within the power and competence
of the belligerent occupant to promulgate, through the National Assembly of
the so-called Republic of the Philippines, Act No. 65 of the said Assembly,
which penalizes the crimes of robbery and other offenses by imprisonment
ranging from the maximum period of the imprisonment prescribed by the laws
and ordinances promulgated by the President of the so-called Republic as
minimum, to life imprisonment or death as maximum. Although these crimes
are defined in the Revised Penal Code, they were altered and penalized by
said Act No. 65 with different and heavier penalties, as new crimes and
offenses demanded by military necessity, incident to a state of war, and
necessary for the control of the country by the belligerent occupant, the
protection and safety of the army of occupation, its support and efficiency, and
the success of its operations.
They are not the same ordinary offenses penalized by the Revised Penal
Code. The criminal acts penalized by said Act No. 65 are those committed
by persons charged or connected with the supervision and control of the
production, procurement and distribution of foods and other necessaries; and
the penalties imposed upon the violators are different from and much heavier
than those provided by the Revised Penal Code for the same ordinary crimes.
The acts penalized by said Act were taken out of the territorial law or Revised
Penal Code, and referred to what is called martial law by international jurists,
defined above by Hyde, in order, not only to prevent food and other
necessaries from reaching the "guerrillas" which were harassing the
belligerent occupant from every nook and corner of the country, but also to
preserve the food supply and other necessaries in order that, in case of
necessity, the Imperial Japanese forces could easily requisition them, as they
did, and as they had the right to do in accordance with the law of nations for
their maintenance and subsistence (Art. LII, Sec. III, Hague Conventions of
1907). Especially taking into consideration the fact, of which this court may
take judicial notice, that the Imperial Japanese Army had depended mostly for
their supply upon the produce of this country.
The crimes penalized by Act No. 65 as well as the crimes against national
security and the law of nations, to wit: treason, espionage, inciting war,
violation of neutrality, correspondence with hostile country, flight to enemy's
country, piracy; and the crimes against public order, such as rebellion, sedition
and disloyalty, illegal possession of firearms and other, penalized by
Ordinance No. 7 and placed under jurisdiction of the Court of Special and
Exclusive Criminal Jurisdiction are all of a political complexion, because the
acts constituting those offenses were punished, as are all political offenses,
for public rather than private reasons, and were acts in aid or favor of the
enemy and against the welfare, safety and security of the belligerent occupant.
While it is true that these offenses, when committed against the
Commonwealth or United States Government, are defined and also penalized
by the territorial law Revised Penal Code, they became inapplicable as crimes
against the occupier upon the occupation of the Islands by the Japanese
forces. And they had to be taken out of the territorial law and made punishable
by said Ordinance No. 7, for they were not penalized before under the Revised
Penal Code when committed against the belligerent occupant or the
government established by him in these Island. They are also considered by
some writers as war crimes in a broad sense. In this connection Wheaton
observes the following:
"Of 'war crimes' the number is naturally indefinite, depending as they do on the
acts from time to time ordered to be done or forbidden to be done in the martial
law proclamation or regulations of the invading or occupying commander.
Thus, in the Anglo-Boer war, the British military authorities proclaimed the
following to be offenses against their martial law; Being in possession of
arms, ammunition, etc.; traveling without a permit; sending prohibited goods;
holding meetings other than those allowed; using seditious language;
spreading alarmist reports; overcharging for goods; wearing uniforms without
due authority; going out of doors between certain hours; injuring military
animals or stores; being in possession, without a permit, of horses, vehicles,
cycles, etc.; hindering those in execution of military orders; trespassing on
defense works. Such offenses, together with several others, were specified in
the Japanese regulations made in the Russo-Japanese war." (Wheaton's
International Law, War, seventh edition, 1944, p. 242.)
It is, therefore, evident that the sentence rendered by the Court of Special and
Exclusive Criminal Jurisdiction against the petitioner, imposing upon him the
penalty of life imprisonment, was good and valid, since it was within the
admitted power or competence of the belligerent occupant to promulgate the
law penalizing the crime of which petitioner was convicted.
(3) The last question is the legal effect of the reoccupation of the Philippines
and restoration of the Commonwealth Government; that is whether or not, by
the principle of postliminy, the punitive sentence which petitioner is now
serving fell through or ceased to be valid from that time.
In order to resolve this last question, it is not necessary to enter into an
elaborate discussion on the matter. It is sufficient to quote the opinion on the
subject of several international jurists and our recent decision in the case ofCo
Kim Cham vs. Valdez Tan Keh and Dizon, supra.
Hall, commenting on the effect of the principle of postliminy upon sentences of
the tribunals continued or created by the belligerent occupant, opines "that
judicial acts done under this control, when they are not of a political
complexion, administrative acts so done, to the extent that they take effect
during the continuance of his control, and the various acts done during the
same time by private persons under the sanction of municipal law, remain
good. . . . Political acts on the other hand fall through as of course, whether
they introduce any positive change into the organization of the country, or
whether they only suspend the working of that already in existence. The
execution also of punitive sentences ceases as of course when they have had
reference to acts not criminal by the municipal law of the state, such for
example as acts directed against the security or control of the invader." (Hall's
International Law, seventh edition, p. 518.)
Westlake, speaking of the duration of the validity of punitive sentences for
offenses such as the one in question, which is within the admitted power or
competence of the belligerent occupant to punish, says that: "To the extent to
which the legal power of the occupant is admitted he can make law for the
duration of his occupation. Like any other legislator he is morally subject to the
duty of giving sufficient notice of his enactments or regulations, not indeed so
as to be debarred from carrying out his will without notice, when required by
military necessity and so far as practically carrying out his will can be
distinguished from punishment, but always remembering that to punish for
breach of a regulation a person who was justifiably ignorant of it would be
outrageous. But the law made by the occupant within his admitted power,
whether morally justifiable or not, will bind any member of the occupied
population as against any other member of it, and will bind as between them
all and their national government, so far as it produces an effect during the
occupation. When the occupation comes to an end the authority of the national
government is restored, either by the progress of operations during the war or
by the conclusion of a peace, no redress can be had for what has been actually
carried out but nothing further can follow from the occupant's legislation. A
prisoner detained under it must be released, and no civil right conferred by it
can be further enforced. The enemy's law depends on him for enforcement as
well as for enactment. The invaded state is not subject to the indignity of being
obliged to execute his commands. (Westlake, International Law, Part II, War,
pp. 97, 98.)
And Wheaton, who, as above stated, considers as war crimes such offenses
as those penalized in Ordinance No. 7 and Act No. 65, says: "In general, the
cast of the occupant possess legal validity, and under international law should
not be abrogated by the subsequent government. But this rule does not
necessarily apply to acts that exceed the occupant's power (e.g., alienation of
the domains of the State or the sovereign), to sentences for 'war
treason' and 'war crimes,' to acts of a political character, and to those that
beyond the period of occupation. When occupation ceases, no reparation is
legally due for what has already been carried out." (Wheaton's International
Law, supra, p. 245.)
We have already held in our recent decision in the case of Co Kim Cham vs.
Valdez Tan Keh and Dizon, supra, that all judgments of political complexion of
the courts during the Japanese regime, ceased to be valid upon the
reoccupation of the islands by virtue of the principle or right of postliminium.
Applying that doctrine to the present case, the sentence which convicted the
petitioner of a crime of a political complexion must be considered as having
ceased to be valid ipso facto upon the reoccupation or liberation of the
Philippines by General Douglas MacArthur.
It may not be amiss to say in this connection that it is not necessary and proper
to invoke the proclamation of General Douglas MacArthur declaring null and
void all laws, among them Act No. 65, of the so-called Republic of the
Philippines under which petitioner was convicted, in order to give retroactive
effect to the nullification of said penal act and invalidate sentence rendered
against petitioner under said law, a sentence which, before the proclamation,
had already become null and of no effect.
We therefore hold that the punitive sentence under consideration, although
good and valid during the military occupation of the Philippines by the
Japanese forces, ceased to be good and valid ipso facto upon the
reoccupation of these Island and the restoration therein of the Commonwealth
Government.
In view of all the foregoing, the writ of habeas corpus prayed for is hereby
granted and it is ordered that the petitioner be released forthwith, without
pronouncement as to costs. So ordered.
Jaranilla, Pablo and Bengzon, JJ., concur.
Moran, C.J., concurs in the result.
Separate Opinions
OZAETA, J., concurring:
Amidst the forest of opinions that have cropped up in this case it would seem
unnecessary to plant an additional tree. To justify our effort lest we seem
intent to bring coal to Newcastle we ought to state that the following opinion
had been prepared before the others were tendered. It has been impossible
for the Court to reconcile and consolidate the divergent views of its members
although they arrive at practically the same result.
Accused of robbery in the Court of Special and Exclusive Criminal Jurisdiction
of Manila, the petitioner was found guilty and sentenced to life imprisonment.
He commenced to serve the sentence on August 21, 1944. He now petitions
this Court for the writ of habeas corpus, alleging that Ordinance No. 7, by which
the Court of Special and Exclusive Criminal Jurisdiction was created and which
was promulgated on March 8, 1944, by the President of the "Republic of the
Philippines," was null and void ab initio. The Solicitor General, answering the
petition on behalf of the respondent Director of Prisons, expressed the opinion
that "the acts and proceedings taken and before the said Court of Special and
Exclusive Criminal Jurisdiction which resulted in the conviction and
imprisonment of the herein prisoner should now be denied force and efficacy,"
and recommended "that the writ of habeas corpusprayed for be granted and
that the City Fiscal be instructed to prepare and file the corresponding
information for robbery against the petitioner herein in the Court of First
Instance of Manila."
The case was argued before us on September 21 and 22, 1945, by the First
Assistant Solicitor General on behalf of the respondent and the City Fiscal
as amicus curiae the former impugning and the latter sustaining the validity
of said Ordinance No. 7. Section 1 of the ordinance in question reads as
follows:
SECTION 1. There is hereby created in every province and city
throughout the Philippines one or more courts of special criminal
jurisdiction as the President of the Republic of the Philippines may
determine upon recommendation of the Minister of Justice, which
courts shall have exclusive jurisdiction to try and determine crimes and
offenses penalized by Act No. 65 entitled "An Act imposing heavier
penalties for crimes involving robbery, bribery, falsification, frauds,
illegal exactions and transactions, malversation of public funds and
infidelity as defined in the Revised Penal Code and violations of food
control laws, when committed by public officers and employees, and
for similar offenses when committed by private individuals or entities,
and providing for a summary procedure for the trial of such offenders."
Section 2 confers upon the court mentioned in section 1 exclusive jurisdiction
also to try the following crimes as defined in the Revised Penal Code: crimes
against national security and the law of nations, crimes against public order,
brigandage, arson and other crimes involving destruction, illegal detention
committed by private individuals and kidnapping of minors; and illegal
possession of firearms, as defined in an executive order. Section 3 provides
for the appointment of one judge of first instance to preside over the court
above mentioned and of a special prosecutor in each special court. Section 4
authorizes the court to impose a longer term of imprisonment than that fixed
by law, or imprisonment for life or death where not already fixed by law, for the
crimes and offenses mentioned in section 2. The remaining sections read as
follows:
SEC. 5. The trial of the cases arising sections 1 and 2 hereof shall be
started within two days after the filing of the corresponding information,
shall be summary in procedure, and shall aim at their expeditious and
prompt disposition. Technicalities shall be avoided and all measures
calculated to serve this end shall be taken by the trial judge. Said
cases shall be decided within four days after the same are submitted
for decision. The summary procedure provided in Act No. 65 insofar
as not inconsistent with the provisions of this Ordinance, shall govern
the trial of the cases enumerated in said sections 1 and 2 hereof.
SEC. 6. The decisions of the special courts herein created shall be
final except where the penalty imposed is death, in which case the
records of the particular case shall be elevated en consulta to a special
division of the Supreme Court composed of the three members to be
designated by the President of the Republic of the Philippines. The
clerk of each special court, upon the promulgation of a decision
imposing the death penalty, shall immediately forward the records of
the case to the special division of the Supreme Court herein created,
which shall decide the case within fifteen days from the receipt of the
records thereof.
SEC. 7. The interest of public safety so requiring it, the privileges of
the writ of habeas corpus are hereby suspended with respect to
persons accused of, or under investigations for, any of the crimes and
offenses enumerated in sections 1 and 2 hereof.
SEC. 8. All laws, rules or orders, or parts thereof, inconsistent with the
provisions hereof, are hereby repealed or modified accordingly.
SEC. 9. This Ordinance shall take effect immediately upon its
promulgation.
The summary procedure provided in Act No. 65 of the "Republic," as referred
to in section 5 above quoted, is in turn that established by Chapter II of
Executive Order No. 157 of the Chairman of the Philippine Executive
Commission, dated May 18, 1943. Under said procedure (section 17) "search
warrants may be issued by the court or by any prosecuting officer, authorizing
peace officers to search for and seize any articles or objects described in the
warrant, including those which may be regarded as evidence of an offense
under this Order even if such articles or objects are not included among those
described in section 2, Rule 122, of the Rules of Court." Section 18 reads as
follows:
SEC. 18. The accused or his representative may be examined by the
court, and with the permission of the court, by the fiscal or other
prosecuting officer as to any matters favorable or unfavorable to him
or his principal; and either may apply to the judge for the examination
of the co-accused or the representative of the latter in matters related
to the defense of the accused. Statements made by the accused, his
co-accused, or the representative of the accused or a person acting in
a similar capacity, irrespective of the circumstances under which they
were made, shall be admissible in evidence if material to the issue.
Section 21 provides for the summary trial in the following manner:
Such trials shall be conducted according to the following rules:
(a) After arraignment and plea, the court shall immediately cause to
be explained to the accused the facts constituting the offenses with
which he is charged, and the judge shall interrogate the accused and
the witnesses as to the facts and circumstances of the case in order
to clarify the points in dispute and those which are admitted.
(b) Refusal of the accused to answer any questions made or allowed
by the court may be considered unfavorable to him.
(c) Except for justifiable reasons, the accused shall not be allowed to
plead and assert defenses that are inconsistent with each other.
(d) If from the facts admitted at the preliminary interrogation, it should
appear that the accused is guilty of the crime charged in the
information, or in any other information, or in any other information, or
in any other information subsequently filed by the prosecuting officer,
a sentence of conviction may be immediately rendered against the
accused. Otherwise, the judge shall dictate an order distinctly
specifying the facts admitted by the accused and those which are in
dispute, and the trial shall be limited to the latter, unless the judge, for
special reasons, otherwise directs.
(e) Unjustified absence of an accused who has been released on bail,
or of his representative shall not be a ground for interrupting the
proceedings or attacking the validity of the judgment.
The provisions of Rules 115 to 117 of the Rules of Court shall be
suppletory to the foregoing insofar as they are not in conflict therewith.
The records shows that during their existence the courts of special and
exclusive criminal jurisdiction created by the ordinance in question convicted
and sentenced a total of 94 individuals, 55 of whom had been prosecuted for
illegal possession of firearms and 15 for robbery; and that of the 94 convicts
only 3, including the herein petitioner, remain in confinement, 21 having
escaped, 37 having been released, and 33 having died.
In synthesis, the argument of the Solicitor General is as follows: Acts of the
military occupant which exceed his power tested by the criterion set forth in
article 43 of the Hague Regulations, are null and without effect as against the
legitimate government. (Wheaton's International Law, 7th ed., p. 245.) Acts in
furtherance or support of rebellion against the United States, or intended to
defeat the just rights of citizens, and other Acts of like nature, must, in general,
be regarded as invalid and void. (Texas vs. White, 74 U. S., 733; 19 Law. ed.,
240.) Judicial or legislative acts in the insurrectionary states were valid where
they were not hostile in their purpose or mode of enforcement to the authority
of the national government, and did not impair the rights of citizens under the
Constitution. (Horn vs. Lockhart, 17 Wall., 570-581; 21 Law. ed., 660.) All the
enactment of the de factolegislatures in the insurrectionary states during the
war, which were not hostile to the Union or to the authority of the General
Government and which were not in conflict with the Constitution of the United
States, or of the states, have the same validity as if they had been enactments
of legitimate legislatures. (United States vs. The Home Insurance Co., 22
Wall., 99-104; 22 Law. ed., 818.) Tested by these principles of international
law, Ordinance No. 7 must be declared void (1) because it favored the forces
of occupation and the civilian Japanese inasmuch as it provided an
excessively heavy penalty for the summary trial of possession of firearms and
violations of food control regulations and (2) because it impaired the rights of
citizens under the Constitution inasmuch as the procedure therein prescribed
withdrew the privilege of the accused against self-incrimination and his right to
appeal to the Supreme Court even where the penalty imposed was life
imprisonment or death.
In substance, the City Fiscal argues that the heavier penalty for the illegal
possession of firearms than that fixed by the Administrative Code was not
directed toward the suppression of underground activities against the
Japanese army, and the rigid enforcement of the food control measures was
not intended to insure the procurement of supplies by said army, because in
any event the Japanese military occupant freely exercised the power to go
after and punish his enemies directly without recurring to the agencies of the
"Republic," for there were even cases where the offenders were already in the
hands of the police or courts of the "Republic" but they were unceremoniously
taken from said agencies by the Japanese military police and punished or
liquidated by it at Fort Santiago or elsewhere; and as regards food control, the
Japanese forces did not have any need of the measures or agencies
established by the "Republic" because the Japanese forces themselves
commandeered what they needed or sent out their own agents to purchase it
for them at prices even much higher than those fixed by the "Republic"; that
the procedure prescribed afforded a fair trial and did not violate any
fundamental rights; that the military occupant was not in duty bound to respect
the constitution and the laws of the occupied territory; that he could abrogate
all of them and promulgate new ones if he so chose; that the cases cited by
the Solicitor General are not applicable because they deal with the validity of
acts and processes of the governments of the rebel states during the Civil War
and are based upon the indissolubility of the Union; that the validity or nullity
of the ordinance in question should be judged in the light of the provisions of
the Constitution and the laws of the "Republic" and of generally accepted
principles of international law; that even assuming that it should be judged by
the standard or the Constitution of the Commonwealth, the ordinance satisfies
all the requirements of said Constitution; that the right to appeal in a criminal
case is not a constitutional but a purely statutory right which may be granted
or withheld at the pleasure of the state; and, finally, that the supposed invalidity
of the sentence imposed against the petitioner cannot be raised by habeas
corpus.
There is no question that in virtue of that of the proclamation of General
MacArthur of October 23, 1944 (41 Off. Gaz., 147, 148), Ordinance No. 7 is
no longer of any force and effect since the restoration of the Government of
the Common wealth of the Philippines. The question before us is whether said
ordinance ever acquired any force and effect or was null and void ab initio.
Invoking decisions of the Supreme Court of the United States in cases
involving the validity of Acts of the Confederacy and of a rebel state as a de
facto government during the Civil War, the Solicitor General maintains that the
ordinance in question was null and void because it impaired the rights of
citizens under the Constitution and because it was hostile in its purpose to the
United States and the Commonwealth of the Philippines.
The decisions invoked would be applicable if the so-called Republic of the
Philippines should be considered as a government established by the Filipino
people in rebellion against the Commonwealth and the Sovereignty of the
United States. The decisions of the Supreme Court of the United States
declaring invalid Acts of a rebel state or of the Confederacy which were in
furtherance or support of rebellion against the United States or which impaired
the rights of citizens under the Constitution, rest on the proposition that the
Union is perpetual and indissoluble and that the obligations of allegiance to
the state, and obedience to her laws, subject to the Constitution of the United
States, remained unimpaired during the War of Secession. (See
Texas vs. White, 74 U.S., 700; 19 Law. ed., 227, 237; William vs. Bruffy, 96
U.S., 176; 24 Law. ed. 716.) Obviously, that proposition does not hold true with
respect to a de facto government established by the enemy in an invaded and
occupied territory in the course of a war between two independent nations.
Such territory is possessed temporarily so possessed temporarily by lawful
government at war with the country of which the territory so possessed is a
part, and during that possession the obligations of the inhabitants to their
country are suspended, although not abrogated (United States vs. Rice, 4
Wheat., 253; Fleming vs. Page 9 How., 614; Baldy vs. Hunter, 171 U.S., 388;
43 Law. ed., 208, 210.) In the case of Williams vs. Bruffy, supra, the court,
speaking though Mr. Justice Field, observed: "The rule stated by Vattel, that
the justice of the cause between two enemies being by law of nations reputed
to be equal, whatsoever is permitted to the one in virtue of war is also permitted
to the other, applies only to cases of regular war between independent nations.
It has no application to the case of a war between an established government
and insurgents seeking to withdraw themselves from its jurisdiction or to
overthrow its authority. The court further stated that the concession of
belligerent rights made to the Confederate Government sanctioned no hostile
legislation and impaired in no respect the rights loyal citizens as they had
existed at the commencement of hostilities.
On the other hand, in a war between independent nations "the rights of the
occupant as a law-giver have broad scope." He many "suspend the existing
laws and promulgate new ones when the exigencies of the military service
demand such action. According to the Rules of Land Warfare he will naturally
alter or suspend all laws of a political nature as well as a political privileges,
and laws which affect the welfare and safety of his command." (Hyde on
International Law, vol. 2, p. 367.) It will be seen then that in a war between
independent nation the army of occupation has the right to enact laws and take
measures hostile to its enemy, for its purpose was to harass and subdue the
latter; and it is not bound to respect or preserve the rights of the citizens of the
occupied territory under their Constitution.
Let us now look into the nature and status of the government styled "Republic
of the Philippines "in order to determined the criterion by which the validity of
its enactments should be tested. In the recent case of Co Kim Cham vs. Valdez
Tan Keh Dizon (G.R. No. L-5, p. 113, ante), this Court speaking through
Justice Feria, had occasion to comment upon the nature of said government
in the following words:
 The so-called Republic of the Philippines, apparently established and
organized as a sovereign state independent from any other
government by the Filipino people, was, in truth and reality, a
government established by the belligerent occupant or the Japanese
forces of occupation. It was of the same character as the Philippines
Executive Commission, and the ultimate source of its authority was
the same the Japanese military authority and government. As
General McArthur stated in his proclamation of October 23, 1944, a
portion of which had been already quoted, "under enemy duress a was
established on October 14, 1943, base upon neither the free
expression of the peoples" will nor the sanction of the Government of
the United States.' Japan had no legal power to grant independence
to the Philippines or transfer the sovereignty of the United State to, or
recognize the latent sovereignty of, the Filipino people, before its
military occupation and possession of the Islands had matured into an
absolute and permanent dominion or sovereignty by a treaty of peace
or other means recognized in the law of nations. For it is a well-
established doctrine in internal law, recognized in the law, recognized
in Article 45 of the Hague Conventions of 1907 (which prohibits
compulsion of the population of the occupied territory to swear
allegiance to the hostile power), that belligerent occupation, being
essentially provisional, does not severe to transfer sovereignty over
the territory controlled although the de jure government is during the
period of occupancy deprived of the power to exercise its rights as
such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United
Statesvs. Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard, 603;
Downes vs. Bidwell, 182 U.S., 345.) The formation of the Republic of
the Philippines was a scheme contrived by Japan to delude of the
Filipino people into believing in the apparent magnanimity of the
Japanese gesture of transferring or turning over the rights of
governments into the hands of Filipinos. It was established under the
mistaken belief that, by doing so, Japan would secure the cooperation
or at least the neutrality of the Filipino people in her war against the
United States and other allied nations.
We reaffirmed those statements. To show further the fictitious character of
much-propagandized "independence" which Japan purported to grant to the
Philippines through the establishment of the "Republic", we may add that, as
matter of contemporary history and of common knowledge, in practice the
Japanese military authorities in the Philippines never treated the "Republic of
the Philippines" as an independent government after its inauguration. They
continued to impose their will on its executive officials when their interests so
required. The Japanese military police arrested and punished various high
officials of said government, including the First Assistant Solicitor General, and
paid no attention to the protests and representations made on their behalf by
the President of the "Republic." As a climax of their continual impositions, in
December 1944 the Japanese military authorities placed the President and the
members of his Cabinet under the "protective" custody of the military police,
and on the 22nd of the month forced them to leave the seat of the government
in Manila and hide with them in the mountains. The only measure they did not
succeed in imposing upon the "Republic" was the conscription of the Filipino
youth into an army to fight with the Japanese against the United States. So,
while in theory and for the purpose of propaganda Japan professed to be a
benefactor and liberator of the Filipinos, hoping thereby to secure their willing
cooperation in her war efforts, in practice she continued to enslave and
oppress the Filipinos, as she saw that the latter remained loyal to the United
States. She found that the Filipinos merely feigned cooperation as their only
means of self-preservation and that those who could stay beyond the reach of
her army of occupation manifested their hospitality by harassing and attacking
that army. Thus Japan continued to oppress and tyrannize the Filipinos
notwithstanding the former's grant of "independence" to the latter. It would
therefore be preposterous to declare that the "Republic of the Philippines" was
a government established by the Filipino people in rebellion against the
Commonwealth and the sovereignty of the United States.
The said government being a mere instrumentality of the Commander in Chief
of the Japanese army as military occupant, the ordinance question
promulgated by the President of the "Republic" must be deemed as an act
emanating from the power or authority of said occupant. The question,
therefore, is whether or not it was within the competence of the military
occupant to pass such a law.
Article 43 of the Hague Regulations provides as follows:
ART. 43. The authority of the legitimate power having actually passed
into the hands of the occupant, the latter shall take all steps in his
power to reestablish and insure, as far as possible, public order and
safety, while respecting, unless absolutely prevented, the laws in force
in the country.
Commenting upon this article, Hyde in his work on International Law, volume
2, pages 366, 367, 368, says:
In consequence of his acquisition of the power to control the territory
concerned, the occupant enjoys the right and is burdened with the duty
to take all the measures within his power to restore and insure public
order and safety. In so doing he is given great freedom may be partly
due to circumstance that the occupant is obliged to consider as a
principal object the security, support, efficiency and success of his own
force in a hostile land inhabited by nationals of the enemy. . . .
 xxx xxx xxx
The right to legislate is not deemed to be unlimited. According to the
Hague Regulations of 1907, the occupant is called upon to respect,
"unless absolutely prevented, the laws in force the ordinary civil and
criminal laws which do not conflict with security of his army or its
support, efficiency, and success."
In the exercise of his powers the commander must be guided by his judgment
and his experience and a high sense of justice. (President McKinley, Order to
the Secretary of War, July 18, 1898, on the occupation of Santiago de Cuba
by the American forces, Moore, Dig. VII, p. 261.)
Acts of the military occupant which exceed his power tested by the criterion
set forth in article 43 of the Hague Regulations, are null and without effect as
against the legitimate government. (Wheaton's International Law, 7th ed.
[1944], p. 245.)
Hall in his Treatise on Internal Law, (7th edition), discussing the extent of the
right of a military occupant, states:
If occupation is merely a phase in military operations, and implies no
change in the legal position of the invader with respect to the occupied
territory and its inhabitants, the rights which he possesses over them
are those which in the special circumstances represent his general
right to do whatever acts are necessary for the prosecution of his war;
in other words he has the right of exercising such control, and such
control only, within the occupied territory as is required for his safety
and the success of his operations. . . . On occupying a country an
invader at once invest himself with absolute authority; and the fact of
occupation draws with it as of course the substitution of his will for
previously existing law whenever such substitution is reasonably
needed, and also the replacement of the actual civil judicial
administration by the military jurisdiction. In its exercise however this
ultimate authority is governed by the condition that the invader, having
only a right to such control as is necessary for his safety and the
success of his operations, must use his power within the limits defined
by the fundamental notion of occupation, and with due reference to its
transient character. He is therefore forbidden as a general rule to vary
or suspend laws affecting property and private personal relations, or
which regulate the moral order of the community. . . . (Pages 498,
499.)
We deduce from the authorities that the power of the occupant is broad and
absolute in matters affecting his safety. But in affairs which do not affect the
security, efficacy, and success of his military operations, his power is qualified
by the transient character of his administration. He is forbidden "to vary or
suspend laws affecting property and private personal relations, or which
regulate the moral order of the community." Unless absolutely prevented, he
is bound to laws, and civil and criminal, in force in the country.
Tested by this criterion, was it within the power or competence of the
Commander in Chief of the Japanese army of occupation of the Philippines to
promulgate Ordinance No. 7? In so far as said ordinance created new court of
special criminal jurisdiction we think his power to promulgate and enforce it
during the occupation cannot be seriously disputed; but in so far as that
ordinance varied radically our law of criminal procedure and deprived the
accused of certain rights which our people have always treasured and
considered inviolate, we are of the that it transcended his power or
competence. We base this opinion upon the following considerations:
1. The occupant was not absolutely prevented from respecting our law of
criminal procedure and the Court of Special and Exclusive Criminal
jurisdiction. The application or nonapplication of said law did not affect the
security, efficacy, and success of his military operations. The crimes over
which the said court was vested with jurisdiction were mostly crimes against
property penalized in our Revised Penal Code, which crimes did not affect the
army of occupation. As to the illegal possession of firearms the City Fiscal
himself, who the validity of the ordinance, informs us that the occupant did not
avail himself of said court but punished his enemies direct without recurring to
the agencies of the "Republic"; and he further informs us that "as regards food
control, the Japanese forces did not have any need of the measures or
agencies established by "Republic", nor did they make use of them.
2. The summary procedure prescribed in Ordinance No. 7 was inquisitorial,
repugnant to the humanitarian method of administering criminal justice
adopted by all progressive, democratic, and freedom-loving countries of the
world, and, therefore, devoid of that high sense of justice by which the military
occupant must be guided in the exercise of his powers. This concept is, we
think, borne out by an examination of the following features of said procedure:
(a) Under the rule of procedure embodied in said ordinance any prosecuting
officer may, on his own volition and even without probable cause, issue a
search warrant for the seizure of documents and articles which may be
regarded as evidence of an offense in violation of section 2, Rule 122 of the
Bill of Rights contained in the Constitution of the Commonwealth, which
guarantees "the right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures," and
prohibits the issuance of warrants except upon probable cause to be
determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce.
(b) The trial must be commenced within two days after the filing of the
information in violation of section 7, Rule 114, which give the accused at
least two days after the plea of not guilty within which to prepare fort trial.
(c) The presumption of innocence in favor of the accused in all criminal
prosecutions until the contrary is proved, which is likewise guaranteed by the
Bill of Rights, is violated in that, after the arraignment and before the
presentation of any proof for the prosecution, the accused is interrogated by
the judge as to the facts and circumstances of the case, and if from the facts
obtained by such interrogation it should appear (to the judge) that accused is
guilty a sentence of conviction may be immediately rendered against him,
thereby also depriving him of his right to meet the witnesses face to face and
of his privilege against self-incrimination.
The City Fiscal justifies this feature of the procedure by giving the following
hypothetical case: "In the house of Juan and under his bed a policeman finds
a revolver. Juan is arrested and an information for illegal possession of
firearms is filed against him by the fiscal. He is brought before the judge of the
corresponding special court for the preliminary interrogatory. He is asked
whether or not he admits that the revolver was found in his house. He answers
in the affirmative but says that he is not the owner of the revolver and he does
not know how it placed there. Asked whether he knows of anybody who could
have placed the revolver under his bed, he answers that it might have been
place there by a guest who slept on his bed the night previous to its discovery
by the polices. He is asked to give the name of the guest reffered to and his
address, but he refuses to answers. Asked if he has other witnesses to support
his claim, he answer that he has none. As may be seen, the evidence of guilt
is complete, and there being no further evidence to be presented that may
change the result the accused may be then and there sentenced by the court.
In this case, the conviction of the accused is reasonable and fair, for his refusal
to reveal the identity of his alleged guest may due, either to the fact that there
was no such guest, or that the cause for concealing his identity is worth
suffering for. Volente non fit injuria."
But to us that hypothetical case is a good illustration of the injustice of such
procedure. There the accused was convicted not because the prosecution had
proved his guilt but because he was unable to prove his innocence. His inability
to prove who the owner of the revolver was, did not to our mind prove him guilt,
beyond reasonable doubt, under the circumstances. He was accused of illegal
possession of firearm, an offense punishable under the ordinance in question
with imprisonment for six to twelve years. He pleaded not guilty, for according
to him the revolver was not his and he did not know how it got into his house.
He had no time to investigate and try to find out whether the policeman himself
or some the other person who wished to do him harm had planted it there,
sooner was the revolver seized than he was brought before the court and
interrogated about it when he was naturally dazed and in a state of alarm. If
the law of criminal procedure had been followed, he would have had ample
time to reflect and endeavor to unravel the mystery. He could have consulted
a lawyer, and he would have been entitled to at least two days after the
information was read to him to investigate the facts and prepare for the trial.
At the trial he would not have been required to answer to any proof in his
defense until the prosecution had presented its witness, principally the
policeman. His lawyer could have cross-examined the policeman and found
out from him whether he had any grudge against the accused and how he
happened to search the latter's house. From the testimony of the policeman
the accused might have been enlightened as to how and by whom the revolver
was place in his house. Suppose that the policeman should say that his
informant as to the presence of the revolver under the bed of the accused was
a houseboy of the latter, and suppose that houseboy was really the one who
planted the revolver because of some grievance he had against his master but
that the latter had not suspected before that his houseboy had any revolver. In
view of the revelation of the policeman he would had been able to investigate
and ascertain that fact. In that he way he could have satisfactory explained
how and by whom the revolver was placed under his bed. But under the
procedure in question as outlined by the City Fiscal, the accused was of course
utterly unable to do that and was consequently doomed to at least six years'
imprisonment for a crime he had not committed.
(d) Section 6 of the Ordinance in question provided: "The decisions of the
special courts herein created shall be final except where the penalty imposed
is death, in which case the records of the particular case shall be elevateden
consulta to a special division of the Supreme Court composed of three
members to be designated by the President of the Republic of the Philippines."
Under our law of criminal procedure, which the military occupant was bound
to respect unless absolutely prevented, all persons accused of any offense
have the right to appeal to the Court Appeals or to the Supreme Court. It is
true that as rule that right is statutory and may be withdrawn by the legislature
except in certain cases where the right to appeal is provided in the Constitution
itself, as in the cases involving life imprisonment and death penalty; but the
question here is not whether the legislative department of the legitimate
government has the power to abrogate that right but whether it was within the
competence of the military occupant to do so.
(e) In the instant case the penalty imposed upon accused by the special court,
after a summary trial was life imprisonment, and he was denied the right to
have that sentence reviewed by the Supreme Court, altho under sub-section
4, section 2, Article VIII of the Constitution of the Commonwealth, he could not
have been deprived by law of that right.
( f ) Section 7 of the Ordinance suspended the privilege of the writ of habeas
corpus with respect to persons accused of or under investigation for any of the
crimes and offenses enumerated in sections 1 and 2. The Constitution of the
Commonwealth prohibit the suspension of that privilege except in cases of
invasion, insurrection, or rebellion when the public safety requires it. The
suspension by the ordinance was not motivated by any one of these cases but
by the necessity for waging a campaign against certain classes of crime;
martial law was not declared; and the suspension of habeas corpus did not
apply to all persons living in the specified territory (as should have been done
if the public safety required such suspension) but only to those accused of or
investigated for certain specified crimes or offenses. The result of such partial
suspension was that persons accused of or under investigation for any of the
offenses specified in section 1 and 2 could be held in detention indefinitely,
whereas person accused of or under investigation for crimes other than those
specified, such for example as theft, physical injuries, homicide, murder, and
parricide, had the right to demand their release byhabeas corpus after the
lapse of six hours. The same discrimination holds true with reference to the
other features already noted above, namely, unreasonable searches and
seizures, summary trial, denial of the presumption innocence, self-
incrimination, and denial of the right to appeal. Such discrimination was
unwarranted and unjust and was contrary to the concept of justice prevailing
in all democratic countries, where every person is entitled to the equal
protection of the laws.
3. It is apparent from the foregoing examination of the main features of the
ordinance that while the methods thus adopted may not be unusual under
totalitarian governments like those of the aggressor nations in the recent global
war, they are strange and repugnant to the people of the democratic countries
which united together to defeat said aggressors and "to reaffirm faith in
fundamental human person, in the equal rights of men and women and of
nations large and small, . . . and to promote social progress and better
standards of life in larger freedom." (Preamble Charter for Peace adopted by
the United Nations at San Francisco, California, June 26, 1945.) The recent
global war was a clash between two antagonistic ways of life, between facism
and democracy. It would be strange indeed if his Court, which functions under
a democratic government that fought with the other democratic nations in that
war, should sanction or approve the way of life, against which that war was
fought and won the cost of million of lives and untold sacrifices.
4. The case involves the interpretation not of constitution but of international
law, which "is based on usage and opinion"; and "he who in such a case bases
his reasoning on high considerations of morality may succeed in resolving the
doubt in accordance with humanity and justice." (Principles of International
Lawrence, 7th ed., pp. 12, 13.) We think the contentions for the petitioner
against the validity of the ordinance in question are in accord with humanity
and justice.
Before concluding this opinion we deem it pertinent to comment on the remark
of the City Fiscal that, as stated in its preamble, the ordinance in question was
promulgated in response to "an urgent necessity for waging an immediately
and relentless campaign against certain classes and expediting the trail and
determination thereof in order to hasten the re-establishment of peace and
other throughout the country and promote a feeling of security among the
people conducive to the earlier return of normalcy in our national life." We
concede that the objective of the author of the ordinance was commendable,
but we think and in this we are supported by the actual result it was
unattainable thru the means and methods prescribed in said ordinance. Peace
and order and normalcy could not be restored unless the root cause of their
disturbance were eliminated first. That cause was the presence in the country
of the Japanese army, which wrecked our political, social, and economic
structures, destroyed our means of communication, robbed the people of their
food, clothing, and medicine and other necessities of life, ejected them from
their own homes, punished and tortured innocent men and women, and other
wise made life unbearable. The relative rampancy of the crimes mentioned in
said ordinance was but the effect of that cause. The cornering and hoarding of
foodstuffs would not for the scarcity produced by the Japanese army and the
disruption of our commerce and industries on account of the invasion. The
possession of firearms was rendered desirable to many person to defend
themselves against or attack the invader. Robberies and other crimes against
property increased as a resulted of hunger and privation to which the people
were subjected by the rapacity of the Japanese. It was a delusion to expect
peace and normalcy to return without eliminating the cause of their disturbance
or destruction of the Japanese army in the Philippines an objective to which
the ordinance was not addressed. So, even from the point of view of the
Filipino people and not of the Japanese army of occupation, the ordinance in
question results untenable.
Having reached the conclusion that the enactment of the procedure embodied
in said ordinance for the special court therein created was beyond the
competence of the occupant, inasmuch as that procedure was inseparable
from the first part of the ordinance which creates the special court and
prescribes the jurisdiction thereof, we are constrained to declare the whole
ordinance null and void ab initio. Consequently the proceedings in said court
which resulted in the conviction and sentence of the petitioner are also void.
PARAS, J., concurring in the result:
Charged with robbery, the petitioner herein was found guilty and sentence to
suffer life imprisonment. He commenced to serve the term on August 21, 1944.
Inasmuch as he was a member of the Metropolitan Constabulary, the basis of
the information was Act No. 65, passed during the Japanese sponsored
Republic of the Philippines and amending certain articles of the Revised Penal
Code. The trial was held by the then existing Court of Special and Exclusive
Criminal Jurisdiction which was authorized to conduct proceedings in a special
manner. Ordinance No. 7 of the "Republic.")
After General of the Army Douglas McArthur had issued the Proclamation
dated October 23, 1944, the Act under which the petitioner was charged and
convicted stands nullified, and the original provisions of the Revised Penal
Code restored. By virtue of article 22 of the said Code, "Penal laws shall have
a retroactive effect in so far as they favor the person guilty of a felony, who is
not a habitual criminal, as this term is defined in rule 5 of article 62 of this Code,
although at the time of the publication of such laws a final sentence has been
pronounced and the convict is serving the same."
In the absence of other details, it may here be assumed that the offense
committed is that defined in article 294, paragraph 5, which provides as
follows:
Any person guilty of robbery with the use of violence against or
intimidation of any person shall suffer:
The penalty of prision correccional to prision mayor in its medium
period in other cases.
In accordance with the provisions of the Indeterminate Sentence Law (Acts
Nos. 4103 and 4225 ), the maximum penalty that can be imposed is six months
of arresto mayor.
This Court has already dismissed cases wherein the defendants were charge
with the violation of law in force at the time of the commission and trial of the
crime, after said laws have been repealed by subsequent legislation,
People vs. Moran (Phil., 44 387); People vs. Tamayo (61 Phil., 226 ), and also
repeatedly released on writs ofhabeas corpus prisoners who, were given the
benefit of subsequent legislation either repealing statute under which they had
been convicted or modifying the same by imposing lesser penalties, Escalante
vs. Santos (56 Phil., 483); Directo vs. Director of Prisons (56 Phil., 692).
Prisoners who behave well are almost always liberated upon the expiration of
the minimum penalty fixed in the judgments of conviction or within a
reasonable time thereafter. In the present case, there being no information that
the double the period of the minimum penalty that could be imposed upon him,
he should be released. As this is the effect of the decision of the majority, I
concur in the result.
DE, JOYA, J., concurring:
The principal question involved in this case is the validity of the judicial
proceeding held in criminal case No. 66 of the Court of Special and Exclusive
Criminal Jurisdiction, established in the City of Manila, during Japanese
occupation, under the authority of Ordinance No. 7, issued by the President of
the so-called Philippine Republic, and the effect on said proceeding of the
proclamation of General Douglas McArthur, dated October 23, 1944.
In said criminal case, herein petitioner was accused of the crime of robbery
and sentenced to life imprisonment, on August 21, 1944.
There can be doubt that the government established in this country by the
Commander in Chief of the Japanese Imperial Forces, under the name of the
Philippine Executive Commission, was a de facto government, as already held
by this Court in civil case G.R. No. L-5 entitled Co Kim Cham vs. Valdez Tan
Keh and Dizon, decided on September 17, 1945 (p. 133, ante). Said
government possessed all the characteristics of a de facto government as
defined by the Supreme Court of the United States, in the following language:
But there is another description of government, called also by
publicists a government de facto, but which might, perhaps, be more
aptly denominated a government of paramount force. Its
distinguishing characteristics are (1), that its existence is maintained
by active military power within the territories, and against the rightful
authority of an established and lawful government; and (2), that while
it exist it must necessarily be obeyed in civil matters by private citizens
who, by acts of obedience rendered in submission to such force, do
not become responsible, as wrongdoers, for those acts, though not
warranted by the laws of the rightful government. Actual governments
of this sort are established over districts differing greatly in extent and
conditions. They are usually administered directly by military authority,
but they may be administrated, also, by civil authority, supported more
or less directly by military force. (MacLeod vs. United States [1913,]
229 U. S., 416.)
Under a de facto government, the courts of the country, under military
occupation, should be kept open, and whenever practicable, the subordinate
officers of the local administration should be allowed to continue in their
functions, supported by the military force of the invader, because the
responsibility of maintaining peace and public order, and of punishing crime,
falls directly upon the commander in chief of the occupying forces. And in the
performance of this duty, he may proclaim martial law (Davis, Elements of
International Law [3d.], pp. 330-332).
In occupied territory, the conquering power has a right to displace the pre-
existing authority, and to assume to such extent as it may deem proper the
exercise by itself of all the powers and functions of government. It may appoint
all the necessary officers and clothe them with designated powers, according
to its pleasure. It may prescribe the revenues to be paid, and apply them to its
own use or otherwise. It may do anything necessary to strengthen itself and
weaken the enemy. There is no limit to the powers that may be exerted in such
cases, save those which are found in the laws and customs and usages of war
(Cross vs. Harrison, 16 How., 164 ; Leitensdorfer vs. Webb, 20 Id., 176; The
Grapeshot, 9 Wall.[ U.S.], 129; New Orleans vs. Steamship Co., [1874], 20
Wall., [ U.S.], 287.
It is generally the better course for the inhabitants of the territory, under military
occupation, that they should continue to carry on the ordinary administration
under the invader; but the latter has no right to force them to do so. If they
decline, his only rights, and it is also his duty, is to replace them by appointees
of his own, so far as necessary for maintaining order and the continuance of
the daily life of the territory: other purposes, as these of the superior judicial
offices, can bide their time (Westlake, International Law, Part II, War, 2d ed.,
pp. 121-123).
Though the fact of occupation imposes no duties upon the inhabitants of the
occupied territory, the invader himself is not left equally free. As it is a
consequence of his acts that the regular government of the country is
suspended, he is bound to take whatever means are required for the security
of public order; and as his presence, so long as it is based upon occupation,
is confessedly temporary, and his rights of control spring only from the
necessity of the case, he is also bound to alter or override the existing laws as
little as possible (Hall, International Law, 6th ed., 476).
The government established here under the Philippine Executive Commission
was more in consonance with the general practice among civilized nations, in
establishing governments for the maintenance of peace and order and the
administration of justice, in territories of the enemy under military occupation;
because said government was of a temporary character.
The government subsequently established under the so-called Philippine
Republic, with a new constitution, was also of the nature of a de
facto government, in accordance with International Law, as it was established
under the authority of the military occupant and supported by the armed forces
of the latter. But it was somewhat different from that established under the
Philippine Executive Commission, because the former apparently, at least,
had the semblance of permanency, which however, is unusual in the practices
among civilized nations, under similar circumstances.
Under military occupation, the original national character of the soil and of the
inhabitants of the territory remains unaltered; and although the invader is
invested with quasisovereignity, which give him a claim as of right to the
obedience of the conquered population, nevertheless, its exercise is limited by
the qualification which has gradually become established, that he must not, as
a general rule, modify the permanent institutions of the country (Hall,
International Law, 6th ed., p. 460).
The Convention Concerning the Laws and Customs of War on Land, adopted
at The Hague in 1899, lays down (Arts. 42, 43) definite rules concerning
military authority over the territory of a hostile state. In addition to codifying the
accepted law, it provides that the occupant must respect, unless absolutely
prevented, the laws in force in the country.
It will thus be readily seen that the municipal law of the invaded state continues
in force, in so far as it does not affect the hostile occupant unfavorably. The
regular courts of the occupied territory continue to act in cases not affecting
the military occupation; and it is not customary for the invader to take the whole
administration into his own hands, as it is easier to preserve order through the
agency of the native officials, and also because the latter are more competent
to administer the laws of the territory; and the military occupant, therefore,
generally keeps in their posts such of the judicial officers as are willing to serve
under him, subjecting them only to supervision by the military authorities, or
by superior civil authorities appointed by him (Young vs. United States, 97 U.
S., 39; 24 Law. ed., 992; Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed.,
1118; MacLeod vs. United States, 229 U. S., 416; 33 Sup. Ct., 955; 57; Law.
ed., 1260; Taylor, International Law, secs. 576, 578; Wilson, International Law,
pp. 331-337; Hall, International Law, 6th ed. (1909), pp. 464, 465,475,476;
Lawrence, International Law, 7th ed., pp. 421-413; Davis, Elements of
International Law, 3rd ed., pp. 330-332, 335; Holland, International Law, pp.
356-57, 359; Westlake, International Law, Part II, War 2d ed., pp. 121-123).
The judicial proceedings conducted, under the municipal law of the territory,
before the court established by the military occupant are general considered
legal and valid, even after the government established by the invader had been
displaced by the legitimate government of said territory.
Thus the judgment rendered by the Confederate courts, during the Civil War,
merely settling the rights of private parties actually within their jurisdiction, not
tending to defeat the legal rights of citizens of the United States, nor in
furtherance of laws passed in aid of the rebellion, had been declared legal,
valid and binding (Coleman vs.Tennessee, 97 U. S 509., 24 Law. ed., 1118;
Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; 21 Law.
ed., 660; Sprott vs. United States, 20 Wall., 249; 22 Law. ed., 371)
When the military forces of the Confederate states were destroyed, their
government perished, and with it all its enactments. But the legislative acts of
the several States forming the Confederacy stood on a different ground, and
so far as they did not impair or tend to impair the supremacy of the national
authority, or the just rights of citizens under the Federal constitution, they were
considered as legal, valid and binding (Williams vs. Bruffy, 96 U. S., 177; 24
Law. ed., 716; Ford vs. Surget, 97 U. S., 594; 24 Law. ed., 1018; United
States vs. Ins. Co., 22 Wall. [ U. S.], 99; 22 Law. ed., 816; Ketchum vs. Buckley
[1878], 99 U. S.,188; Johnson vs. Atlantic G. & W. I. Transit Co., 156 U. S.,
618; 15 Sup. Ct., 520).
In the later case, the Supreme Court of the United States reaffirmed that the
judicial and legislative acts of the rebellious States, as de facto governments,
should be respected by the courts, if they were not hostile in their purpose or
mode of enforcement to the authority of the national government, and did not
impair the rights of citizens under the Federal Constitution. (Baldy vs. Hunter,
171 U. S., 388; 18 Sup. Ct., 890; Law. ed., 208.)
Under the proclamation of General Douglas MacArthur, dated October 23,
1944, declaring null and void all laws, regulations and processes issued and
promulgated by the Philippine Executive Commission and the Philippine
Republic, during Japanese occupation, said Ordinance No. 7 promulgated on
March 8, 1944, creating the Court of Special and Exclusive Criminal
Jurisdiction, ostensibly for the speedy reestablishment of peace and order, and
Executive Commission, prescribing summary rules of procedure, and other
allied laws, such as Act No. 65 of the puppet republic, prescribing heavier
penalties, became null and void, once the Japanese armies in the Philippines
had been defeated, as with them the de facto governments, successively
established under them, perished, and with them all their enactments and
processes of a hostile character.
But there are other considerations equally important why judicial proceedings
held and conducted before the courts established by said de
facto governments, under laws promulgated by them, should be declared null
and void, without violating, in the least, settled principles, judicial precedents
or public policy.
Said Ordinance No. 7 adopted as integral parts thereof said Executive Order
No. 157, as well as said Act No. 65 of the National Assembly of the puppet
republic, prescribing exceptionally heavy penalties for the crimes enumerated
therein.
The principal crimes mentioned in said Ordinance No. 7 and Act No. 65 of the
puppet republic and the other allied laws are illegal possession of firearms,
robbery, violations of food-control laws, falsification malversation and bribery;
and it was under said laws that herein petitioner was prosecuted and
sentenced to life imprisonment for the crime robbery.
The penalty of life imprisonment or death for robbery was aimed principally at
the underground forces resolute and determined to seize and remove stores
of food provisions, whenever possible, to prevent them from falling into the
hands of the enemy.
The penalty of twelve years' imprisonment for illegal possession of firearms
was directed mainly against those underground forces, that had been
receiving arms from the forces of liberation across the seas.
Violation of food-control laws were included and used as a pretext and
justification for the seizure and confiscation of food provisions so badly needed
by the invader.
And the inclusion under said Ordinance No. 7 of the crime of bribery and other
was used as a cloak to conceal its venom and make said law look innocent.
By the imposition of excessive penalties , by the denial of the remedy
of habeas corpus, by compelling the accused to testify against themselves,
and by denying them the right of appeal to the highest court of the land, except
where the death penalty was imposed, and by its summary procedure, said
Ordinance No. 7 and the other allied laws impaired and defeated the just and
legal rights of Filipino citizens under the Commonwealth Constitution, and the
supremacy of the authority of the legitimate Government. Under said laws, the
persons accused were deprived of liberty without due process of law.
In the language of this Court, "the phrase 'due process of law' used in the
Philippine Bill should receive a comprehensive interpretation, and no
procedure should be treated as unconstitutional which makes due provision
for the trial of alleged criminal before a court of competent jurisdiction, for
bringing the accused into court and notifying him of the cause he is required
to meet, for giving him an opportunity to be heard, for the deliberation and
judgement of the court, and for an appeal from such judgement to the highest
tribunal" (United States vs.Kennedy, 18 Phil., 122).
In their conception, in their purpose and mode of enforcement and execution
said laws were hostile to the authority of the Commonwealth Government and
that of the United States of America; as they had been promulgated in
furtherance of the war aims of the enemy, and they are, therefore, of political
character and complexion.
Those repressive laws were aimed at the men and women who had kept the
faith, and whose heroes and martyrs now lie in graves still unknown and whose
names remain unsung; but whose heroic efforts and sacrifices have made
immortal the legends of Filipino resistance, and made possible our
participation in the councils of free and liberty-loving peoples and nations.
Said laws are contrary to the principles of Democracy, championed by North
America, whose gigantic efforts and heroic sacrifices have vindicated human
rights, human dignity and human freedom, and consecrated them anew all
over the earth with the generous blood of her children. They violate the
fundamental principles of Justice for which civilized Mankind stands, under the
benign leadership of Totalitarianism and given all the nations of the earth a
new birth as well as a new character of freedom, to enable each and everyone
to live a nobler and more worthy life and realize the justice and prosperity of
the future.
For the foregoing reasons, I concur in the dispositive part of the opinion
prepared by Mr. Justice Feria.
PERFECTO, J., concurring:
On October 21, 1944, petitioner William F. Peralta began to serve, in the
Muntinglupa Prison Camp, a sentence of life imprisonment imposed by the
Court of Special and Exclusive Criminal Jurisdiction, created by Ordinance No.
7 issued by President Laurel of the Republic of the Philippines under the
Japanese regime, and now seeks a writ ofhabeas corpus in order that his
liberty may be restored to him, contending that said Ordinance No. 7 was null
and void ab initio because it was of a political complexion and its provisions
are violative of the fundamental laws of the Commonwealth of the Philippines.
Petitioner alleges that sometime in the month of September, 1943, he joined
the Constabulary forces as a private, against his will, and before joining it, he
was for several times arrested and maltreated as a guerrilla member, he being
then a minor only 17 years old, and that he was prosecuted, not because he
committed any crime, but because he joined the guerrilla organization,
deserted the Constabulary forces, and followed political and military activities
in open allegiance to the Commonwealth Government and the United States
of America.
The Solicitor General, appearing in behalf of respondent Director of Prisons,
answered the petition agreeing that the acts and proceedings taken and had
before said Court of Special and Exclusive Criminal Jurisdiction should be
denied force and efficacy, and therefore, recommended that the writ prayed
for be granted.
At the hearing held on September 21, and 22, 1945, there appeared to argue
the First Assistant Solicitor General, impugning the validity of said Ordinance
No. 7, and the City Fiscal of Manila, as amicus curiae, who sustained the
validity if the said Ordinance and the proceeding by virtue of which petitioner
was sentenced to life imprisonment.
I. ORDINANCE NO. 7 AND PROCESSES UNDER IT NULLIFIED BY
THE OCTOBER PROCLAMATION OF GENERAL MACARTHUR
On October 23, 1944, General of the Army Douglas MacArthur, Commander
in Chief of the Philippine-American Forces, which fought in Bataan and later
liberated the whole Philippines, as an aftermath of the liberation, issued a
proclamation declaring:
1. That the Government of the Commonwealth of the Philippines is,
subject to the supreme authority of the Government of the United
States, the sole and only government having legal and valid
jurisdiction over the people in areas of the Philippines free of enemy
occupation and control;
2. That the laws now existing on the statute books of the
Commonwealth of the Philippines and the regulations promulgated
pursuant thereto are in full force and effect and legally binding upon
the people in areas of the Philippines free of enemy occupation and
control; and
3. That all laws, regulations and processes of any other government
in the Philippines than that of the said Commonwealth are null and
void and without legal effect in areas of the Philippines free of enemy
occupation and control.
It appears that Ordinance No. 7 in question has been issued under the
Japanese regime and that the judicial process under which petitioner has been
sentenced to life imprisonment, having been held in a court not belonging to
the Commonwealth of the Philippines but organized and established under the
authority of the enemy, became null and void and without effect since October
23, 1944, by virtue of the above-quoted October Proclamation of General
MacArthur.
We have explained at length our position as to the effects of said October
Proclamation in our dissenting opinion in the case of Co Kim Cham vs. Valdez
Tan Keh and Dizon (G. R. No. L-5, 153, ante), and we deem it unnecessary to
repeat what we stated in said opinion.
It is fortunate that all the members of the Supreme Court arrived at a
unanimous conclusion as to the absolute nullity of the process under which
petitioner is now being held in prison.
The shocking character of the provisions of Ordinance No. 7 and the
processes held under it show once more how General MacArthur was
absolutely right and justified in issuing the October Proclamation.
 There are indications that more processes held under the Japanese regime
will come to our knowledge, revealing strong grounds for their annulment,
justifying, like the process here in question, the wisdom of the decision of
General MacArthur in nullifying in a sweeping manner all judicial processes
held during enemy occupation.
The October Proclamation is, in keeping with the following official statement of
the President of the United States:
On the fourteenth of this month, a puppet government was set up in
the Philippine Islands with Jose P. Laurel, formerly a justice of the
Philippine Supreme Court as president. Jorge Vargas, formerly a
member of the Philippine Commonwealth Cabinet and Benigno
Aquino, also formerly a member of that cabinet, were closely
associated with Laurel in this movement. The first act of the new
puppet regime was to sign a military alliance with Japan. The second
act was a hypocritical appeal for American sympathy which was made
in fraud and deceit, and was designed to confuse and mislead the
Filipino people.
I wish to make it clear that neither the former collaborationist
"Philippine Executive Commission" nor the present Philippine
Republic has the recognition or sympathy of the Government of the
United States. . . .
Our sympathy goes out to those who remain loyal to the United States
and the Commonwealth that great majority of the Filipino people
who have not been deceived by the promises of the enemy. . . .
October 23, 1943
SEVELT
es
(From U. S. Naval War College, International Law Documents, 1943,
pp. 93, 94.)
Putting aside the October Proclamation, by a mere perusal of the ordinance in
question, we will see immediately how such law and the processes held under
it are incompatible with the fundamental principles and essential safeguards in
criminal procedure, universally recognized in civilized modern nations and how
such ordinance and processes can only be justified by a retrogressive and
reactionary mentality developed under the social, cultural, and political
atmosphere of the era of darkness.
II. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST
UNREASONABLE SEARCHES AND SEIZURES
Section 5 of Ordinance No. 7 provides that cases arising under it shall follow
the summary procedure provided in Act No. 65 of the Laurel Philippine
Republic, which, in turn, is the same as that established by Chapter II of
Executive Order No. 157 of the Chairman of the Vargas Philippine Executive
Commission, dated May 18, 1943.
Under said procedure, "search warrants may be issued by the court or by any
prosecuting officer, authorizing peace officers to search for and seize any
articles or objects described in the warrant, including those which may be
regarded as evidence of an offense under this order even if such articles or
objects are not included among those described in section 2, Rule 122, of the
Rules of Court." This provision is repugnant to the Filipino sense of right in the
matter of warrants of search and seizure, sense of right which has been clearly
and definitely stereotyped in the following words of our fundamental law:
The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizure shall not be
violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of
the complaint and witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be
seized. (Art. III, sec. 1, No. 3, Constitution of the Philippines.)
This constitutional provision is violated by the summary, unreasonable, and
arbitrary procedure provided under the authority of the ordinance in question:
(1) By authorizing "any prosecuting officer" to issue search warrants, when
under our Constitution such search warrants should be issued only by a judge;
(2) By trespassing the limits established by section 2, Rule 122, of the Rules
of Court, considered as a necessary element to make the warrant reasonable;
(3) By authorizing the search and seizure of articles or objects not described
in warrant, which is the real meaning of the words "including those which may
be regarded as evidence of an offense under this Ordinance."
III. DISCRIMINATORY AND INIQUITOUS SUSPENSION OF THE
WRIT OF HABEAS CORPUS
Section 7 of Ordinance No. 7 in question provides that "the privileges of the
writ habeas corpus are hereby suspended with respect to persons accused of,
or under investigation for, any of the crimes and offenses enumerated in
sections 1 and 2 hereof."
This provision is also violative of one of the fundamental guarantees
established in the Constitution of the Philippines, which provides that the writ
of habeas corpus may be suspended only in case of "invasion, insurrection, or
rebellion" and only "when the public safety requires it."
The privilege of the writ of habeas corpus shall not be suspended
except in cases of invasion, insurrection, or rebellion, when the public
safety requires it, in any of which events the same may be suspended
wherever during such period the necessity for such suspension shall
exist. (Art. III, sec. 1, No. 14, Constitution of the Philippines.)
Again, it is evident that the ordinance in question is repugnant to the deep
sense of right of our people. It is so, not only because it suspends the privilege
of the writ of habeas corpus, without the circumstances which can only justify
said suspension, but because it flagrantly violates the fundamental principle of
equality before the law, by depriving the accused, in cases falling under the
ordinance in question, of the privilege of the writ of habeas corpus, which is
not denied to the accused in all other cases:
No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of
the laws. (Art. III, sec. 1, No. 1, Constitution of the Philippines.)
IV. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST
SELF- INCRIMINATION
Under section 18 of Executive Order No. 157, above mentioned, "the
accused or his representative may be examined by the court, and with the
permission of the court, by the fiscal or other prosecuting officer as to any
matters favorable or unfavorable to him of his principal." (Emphasis ours.)
It is also provided that "statements made by the accused, his co-accused, or
the representative of the accused or a person acting in a similar capacity,
irrespective of the circumstances under which they were made shall be
admissible in evidence if material to the issue." (Emphasis ours.)
Under section 21 of Executive Order No. 157, after arraignment and plea, "the
judge shall interrogate the accused . . . as to facts and circumstances of the
case in order to clarify the points in dispute and those which are admitted." In
the same section it is also provided that "refusal of the accused to answer any
questions made or allowed by the court may be considered unfavorable to
him." (Emphasis ours.)
Under the same section the absence of an accused or of his representative
"shall not be a ground for interrupting the proceedings or attacking the validity
of the judgment."
From the foregoing, it appears:
(1) That the accused may be examined by the court or any prosecuting officer
as to any matters favorable or unfavorable to him;
(2) That the refusal of the accused to answer may be considered unfavorable
to him;
(3) That statements made by the accused, "irrespective of the circumstances
under which they were made" (that is, even under third degree procedure, or
exacted through brutal kempei tortures), shall be admissible in evidence;
(4) That not only the accused, but "his representative" (his lawyer, whose
personal security was jeopardized under the Japanese regime), may be
examined by the court or by the fiscal or other prosecuting officer, as if said
representative or attorney is facing the same criminal prosecution instituted
against his client;
(5) That the statement made by said representative or attorney, although
exacted under duress, intimidation, or torture, shall be admissible in evidence;
(6) That statements made by any person acting in a similar capacity as a
representative of the accused which may be a relative or a friend or, even an
impostor who might pose as a representative to assure the doom of the
accused, "irrespective of the circumstances under which they were made (that
is, even if made in the absence of the accused, or in the same circumstances
under which masked spies decreed the death of innocent citizens pointed by
them during zoning concentrations), shall be admissible in evidence;
(7) That trial shall proceed in the absence of the accused;
(8) That trial shall proceed in the absence of his attorney or other
representative.
It is evident that the procedure established violates the following provisions of
our fundamental code:
In all criminal prosecutions the accused shall be presumed to be
innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and cause
 of the accusation against him, to have a speedy and public trial, to
meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses in his behalf. (Art. III, sec. 1, No.
17, Constitution of the Philippines.)
No person shall be compelled to be a witness against himself. (Art. III,
sec. 1, No. 18, Idem.)
The procedure is so revolving, so nauseating, and so opposed to human
nature, that it takes a real courage to keep our equanimity while we are
compelled to analyze it.
It is beyond our comprehension how a man, endowed with reason, could
devise such an execrable system of judicial procedure, which is but a
shameless mockery of the administration of justice.
We must be very careful to retain zealously the constitutional guarantee
against self-incrimination. We must not forget that that constitutional guarantee
was acquired as a result of protest against all inquisitorial and third degree
procedures. We must not forget how, not very long ago, in the thirteen colonies
of America, alleged witches were burned at the stake, as a means of
compelling them to confess their fantastic compacts with the devil. We must
not forget how an institution created in the twelfth century was the cause of so
much tortures and sufferings, and that the terroristic menace of its rakes was
abolished in Spain, and therefore in Philippines, only in 1834.
We must not forget that during normal times, under the twentieth century lights,
just before the last global war started, in the United States of America and in
the Philippines, denunciations of third degree procedures employed by agents
the law were often heard. This very Supreme Court, not only once, had to deal
with cases where such tactics were conclusively proved. Even today, among
criminal cases we have under consideration, there is evidence of confessions
exacted through cruel and brutal means.
No matter what merits can be found, from the theoretical point of view, in the
arguments of those who are championing the suppression of the constitutional
guarantee against self-incrimination, the undeniable reality of human
experience shows conclusively the absolute need of such guarantee if justice
must be served. Even with the existence of such guarantee, there are officers
of the law who cannot resist temptation of using their power to compel, through
third degree methods, innocent or guilty persons to admit involuntarily real or
imaginary offenses. Let us allow changes tending to nullify the protection
against self-incrimination, and no man, however innocent he may be, shall be
secure in his person, in his liberty, in his honor, in his life.
V. THE FUNDAMENTAL RIGHT OF APPEAL TRAMPLED UPON
In section 6 of Ordinance No. 7, it is provided that "the decision of the special
courts herein created shall be final except where the penalty imposed is death,
in which case the records of the particular case shall be elevated en consulta to
a special division of the Supreme Court composed of three members to be
designated by the President of the Republic of the Philippines."
This provision is a clear violation of the fundamental right of appeal,
constitutionally guaranteed to all accused in the Philippines. Under the
Constitution of the Philippines, all accused are entitled to appeal to the
Supreme Court:
(1) In all cases in which the constitutionality or validity of any treaty, law,
ordinance, or executive order or regulations is in question. (Art. VIII, sec. 2,
No. 1, Constitution of the Philippines.)
(2) In all cases involving the legality of any tax, impost, assessment, or toll, or
any penalty imposed in relation thereto. (Art. VIII, sec 2, No. 2, Idem.)
(3) In all cases in which the jurisdiction of any trial court is in issue. (Art. VIII,
sec. 2, No. 3, Idem.)
(4) In all criminal cases in which the penalty imposed is death or life
imprisonment. (Art. VIII, sec. 2, No. 4, Idem.)
(5) In all cases in which an error or question of law is involved. (Art. VIII, sec.
2, No. 5, Idem.)
Before the adoption of the Constitution of the Philippines, it was the prevailing
theory in judicial decisions that the right of appeal is not a fundamental one,
but it is a mere privilege or mere statutory grant.
The drafters of our Constitution, taught by the unerring lessons of human
experience, came to the conclusion that mistake is one of the most irretrievable
human weaknesses.
The drafters of our Constitution, therefore, considered it necessary to establish
constitutional guarantees to reduce to its minimum the effects of such innate
human weakness by providing that the appeal to the highest tribunal of the
land may be enjoyed by any accused, who, under the specific provisions of
the Constitution, believed himself to be the victim of a wrong in any inferior
court.
The fact that the provisions of section 2, of Article VIII, of the Constitution,
instead of stating that the accused shall not be denied of the right of appeal in
the cases mentioned therein, provide that the Supreme Court may not be
deprived of its jurisdiction to review, revise, reverse, modify, or affirm on
appeal, certiorari, or writ of error as the law or the rules of court may provide,
final judgments and decrees of inferior courts, in the specified cases, does not
impair nor diminish the fundamental character of the right of appeal of the
accused to the Supreme Court.
The provisions of section 2, of Article VIII, of the Constitution, have been
enacted by our Constitutional Convention, not for the benefit and well-being of
the people.
In fact, the Supreme Court is just one of the instrumentalities created by the
Constitution in the service of the people. The Supreme Court is not an entity
or institution whose rights and privileges must be constitutionally guaranteed.
It is only a means. It is one of the means considered necessary by our
Constitution to better serve the supreme interest of the people.
As a matter of fact, the Supreme Court of the United States itself declared that
the elimination of said tribunal is not incompatible with the existence of a
government of laws. In a case of denaturalization wherein the Government of
the United States sought to deprive a person of his American citizenship, on
the ground that the 1928 platform of the Communist Party of the United States,
to which the respondent belonged, advocated the abolition of the supreme
Court, of the Senate and the veto power of the President, and replacement of
congressional districts with "councils of workers" in which legislative and
executive powers would be united, the Federal Supreme Court declared:
These would indeed be significant changes in our governmental
structure changes which it is safe to say are not desired by the
majority of the people in this country but whatever our personal
views, as judges we cannot say that person who advocates their
adoption through peaceful and constitutional means is not in fact
attached to the Constitution those institutions are not enumerated
as necessary in the government's test of "general political philosophy",
and it is conceivable that "orderly liberty" could be maintained without
them. The Senate has not gone free of criticism and one object of the
Seventeenth Amendment was to make it more responsive to the
popular will. The unicameral legislature is not unknown in the country.
It is that this Court has played a large in the unfolding of the
constitutional plan (sometimes too so in the opinion of some
observers), but we be arrogant indeed if we presume that a
government of laws, with protection for minority groups would be
impossible without it. Like other agencies of government, this Court at
various lines its existence has not escaped the shafts of critics whose
sincerity and attachment to the Constitution is beyond question
critics who have accused it of assuming functions of judicial review not
intended to be conferred upon it, or of abusing those function to thwart
the popular will, and who advocated various remedies taking a wide
range. (Schneiderman vs. United States of America, June 21, 1943.)
VI. ABRIDGMENT OF THE CONSTITUTIONAL GUARANTEE OF
EQUAL PROTECTION OF THE LAWS
The constitutional guarantee of equal protection of the laws is evidently
abridged in the summary procedure in criminal cases under Ordinance No. 7:
(1) By the fact that the accused therein are victims of search warrants specially
provided for them, where the guarantees against unreasonableness in search
warrants issued against other accused are specially eliminated.
(2) By depriving the accused, under the Ordinance No. 7, the privilege of the
writ of habeas corpus enjoyed by the accused in other cases.
(3) By depriving the accused, under Ordinance No. 7 of the fundamental right
of appeal in all cases, except when sentenced of death is imposed.
(4) By discriminating against the accused, under Ordinance No. 7, where the
right of appeal is retained for them, that is, in cases where the sentenced
imposed is death, by entrusting the power to revised said sentence to small
minority of the Supreme Court, under the Japanese regime, and a minority of
three justices to be specially called out by the President of the Laurel Philippine
Republic, undoubtedly with the evident purpose of the confirmation of the
conviction of the accused, and to make the appeal en consulta just an empty
gesture to make the situation of the accused more pitiful by lengthening is days
of agony.
(5) By placing the accused, in the case in question, under the sword of
Damocles of an unfavorable presumptions, should he refuse to answer any
question that the court or any prosecuting officer might propound to him.
Under our constitution, no one shall be deprived of the "equal protection of the
laws". (Art. III, sec. 1, No. 1, Constitution of the Philippines.)
VII. THE PRESUMPTION OF INNOCENCE OF THE ACCUSED IN
ALL CRIMINAL PROSECUTIONS VIOLATED
Since the American flag began to fly over our soil, the fundamental guarantee
that in all criminal prosecution the accused shall be presumed innocent until
the contrary is proved beyond all reasonable doubt, has been implanted in our
country to remain forever.
That guarantee was consecrated in our Constitution:
In all criminal prosecution the accused shall be presumed to be
innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and cause
of the accusation against him, to have a speedy and a public trial, to
meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses in his behalf. (Art. III, sec. 1, No.
17, Constitution of the Philippines.)
This guarantee is undoubtedly violated when, in the summary procedure
established by Ordinance No. 7, it is provided that the refusal of the accused
to answer any question, propounded by the court or any officer, "may raise
unfavorable presumption against him."
If we have to keep democracy in our country, we must be vigilant in upholding
the constitutional principle that all persons shall be presumed to be innocent
until the contrary is proved beyond all reasonable doubt.
This principle is the opposite of that prevailing under autocracies, or under
facist or totalitarian regimes. During the Japanese occupation all persons who
might fall under the suspicion of any Japanese or their spies and lackeys, were
presumed to be guilty of any imaginary crime until they were able to convince
their victimizers of the contrary, beyond any reasonable doubt. Even then, they
were submitted to preventive tortures and long months of imprisonment, just
in case they might think later of committing any offense against the Japanese
or their collaborators.
VIII. ORDINANCE NO. 7 VIOLATED THE HAGUE CONVENTION OF
1899
In the convention concerning the laws and customs of war on land, adopted
by the Hague in 1899, it is provided that the military occupant must respect the
laws in force in the occupied country, unless absolutely prevented. (Arts. 42
and 43.)
The provision of the Convention has been flagrantly violated when, under the
enemy occupation the Laurel Philippine Republic enacted Ordinance No. 7
which suspended our laws, including the fundamental one, by substantially
subverting the judicial procedures in the special criminal cases instituted under
said ordinance.
For this reason, said ordinance, being violative of international law, was null
and void ab initio.
Under international law, under the most elemental principles of law, the
legitimate government, once restored to its own territory, after expelling the
enemy invader, enjoys the absolute freedom of not recognizing or of nullifying
any and all acts of the invader, including those internationally legal ones. The
situation is exactly the same as that of the owner of the house who can do
anything in it that pleases him, after expelling the bandit who was able to usurp
its possession for a while.
General McArthur exercised correctly that power by the sweeping nullification
decreed in his October Proclamation.
But even without the October Proclamation, the judicial process maybe it is
better to say injudicial process which resulted in the imprisonment of
petitioner, must be shorn of all effects because it had taken place under the
authority of an ordinance which was null and void ab initio.
IX. THE DECISION CONVICTING THE PETITIONER HAVING BEEN
RENDERED UNDER FOREIGN AUTHORITY IS UNENFORCEABLE
The decision by which petitioner William F. Peralta was convicted and is being
confined for life having been rendered by a tribunal created, functioning, and
acting under the authority of a foreign State, the Emperor of the Imperial
Government of Japan, is unenforceable.
It has, therefore, the nature of a foreign decision or judgment. For that reason,
it is unenforceable within the Philippines or under the Commonwealth, as we
have shown in our opinion in the case of Co Kim Cham vs. Valdez Tan Keh
and Dizon (G.R. No. 5, p. 153, ante)
Said decision, having been rendered under Ordinance No. 7, which was null
and void ab initio, carries the same vice as the ordinance under which it was
rendered.
But even admitting arguendo that said decision is valid, because it is so under
international law, and is not included in the nullification decreed by General
Douglas MacArthur, still it cannot be enforced, being a foreign decision. A
foreign decision can only be enforced through the institution of an action before
our tribunals. Even decisions of a court of the United States or of any of its
States or territories can be enforced in the Philippines only by the institution of
an action or special proceeding before our own courts. This theory is confirmed
by sections 47 and 48, Rule 39, of the Rules of Court, which read:
 SEC. 47. Effect of record of a court of the United States. The effect
of a judicial record of a court of the United States or of a court of one
of the States or territories of the United States, is the same in the
Philippines as in the United States, or in the States or territory where
it was made, except that it can only be enforced here by an action or
special proceeding, and except, also, that the authority of a guardian,
or executor, or administrator does not extend beyond the jurisdiction
of the Government under which he was invested with his authority.
SEC. 48. Effect of foreign judgments. The effect of a judgement of
a tribunal of a foreign country, having jurisdiction to pronounce the
judgement, is as follows:
(a) In case of a judgement against a specific thing, the judgment is
conclusive upon the title to the thing;
(b) In case of a judgement against a person, the judgement is
presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title; but the judgement may
be repelled by evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.
X. THE STUNNING FACTS REVEALED IN THE REPORT OF THE
DIRECTOR OF PRISONS.
At the hearing of this case, respondent Director of Prisons was required to
submit statistical data concerning the number of prisoners and the various
crimes for which they were convicted by the Court of Special and Exclusive
Criminal Jurisdiction.
In submitting said statistical data, the Solicitor General, as counsel for
respondent, calls our attention to the fact that, out of the 92 prisoners
committed by said courts to the Bureau of Prisons for confinement, fifty-five
(55), that is more than one-half, were convicted of illegal possession of
firearms, and that only 3 are now actually in confinement serving sentences,
among them the petitioner in this proceeding, thus dissipating the unfounded
fear entertained by the City Fiscal of Manila, to the effect that a pronouncement
by this Supreme Tribunal that the sentences of the courts in question are null
and void, will signify the release of hundreds of criminals, whose liberty and
mixing with society will endanger public peace and order.
Of the other two remaining prisoners serving sentence, one has been
committed for evasion of service of sentence, and the other for illegal
possession of firearms.
Of the 55 prisoners convicted for illegal possession of firearms, 25 died, 23
were released, and 6 escaped, and this is the reason why only one remains in
confinement.
It is striking that so many prisoners died, 25 of those convicted for illegal
possession of firearms, that is, almost 50% of them, 33 of the total of 94
prisoners committed, or more than one-third of them. This unusual and
shocking percentage of mortality is worth inquiring into and, certainly, cannot
be counted very favorably to judicial proceedings which eventually lead to such
wholesale death, if not outright massacre.
The fact that a big number of the prisoners, 21 of them, were able to escape,
was not explained to us. Is it reasonable to surmise, from the ruthless cruelty
of the proceedings and of the penalties imposed, which exacted from the
mouth of the First Assistant Solicitor General, who appeared to argue the case
in behalf of the respondent, the adjective "ferocious", that the wardens
themselves, moved by pity, directly or indirectly helped the escape?
More than one-third of the prisoners committed by the said courts in
confinement to the Bureau of Prisons, that is, 33 of them died. May we ask if
they died because they were executed? Of those who died, one was convicted
of profiteering in rice, one of robbery, one of kidnapping of minor, one of
violation of certain sections of Act No. 66, four of crimes against public order,
and 25 of possession of firearms. If all of them were executed by virtue of
sentences rendered by the courts in question, that fact does not speak very
highly of their proceedings. If the accused died by natural death, there must
be something physically or morally fatal in said proceedings.
If a tree must be judged by the fruits it bears, how shall we judge proceedings
so deadly, so fatal, so wantonly inhuman as the proceedings had in the special
courts in question?
The City Fiscal of Manila exerted great efforts to show that the fact that in the
proceedings in question "the refusal of the accused to answer any question
made or allowed by the court may be considered unfavorable to him," does
not violate the constitutional guarantee against self-incrimination. He even
goes to the extent of maintaining the theory that such constitutional guarantee
is not essential for the protection of the substantial rights of an accused.
His argument centered on the alleged freedom of the accused to refuse to
answer any question made or allowed by the court, alleging that, if the accused
chooses to refuse to answer, the court cannot compel him to answer under
menace of punishment for contempt or through any other coercive or minatory
measures.
The City Fiscal seems to labor under the belief that the fact that the silence of
the accused "may be considered unfavorable to him", is of no consequence at
all.
Such belief can logically be entertained alone by ignoring completely the
lessons of experience in human conduct.
If the refusal to answer can be considered unfavorably to the accused, is not
that the same as placing him on the hard predicament of choosing between
testifying self-incriminating and risking the fatal effects of a legal presumption
of guilt? Is not that the same as placing him between the two steel cages of a
dilemma: self-incrimination or presumption of guilt? Is not that the same as
placing him between Scylla and Charybdis, between a dagger and a wall?
Either way, he will always find himself under the inexorable sword of Damocles
of sure punishment, whether he testifies or refuses to testify. It is not
impossible to open a debate upon the abstract question whether the
constitutional guarantee against self-incrimination should not remain. But the
value of such a moot question, for purposes of this case, is nil.
The constitutional guarantee had to be adopted as a protest against
inquisitorial method of the past, when accused and suspects were submitted
to the most brutal torture to compel them to confess real or imaginary crimes.
That past is not far away. It seems that we are still smelling the stench of
human flesh burned in the stakes, where suspected witches suffered iniquitous
death.
There is no doubt that the procedure in question shows the purpose of
pandering to the most flagitious doctrines in criminal proceedings. The
transgressions of the bill of rights in all its phases cannot be hidden even to a
chela in constitutional law. It is the very negation of the administration of
justice. Such procedure has absolutely no place in the framework of our
juridical system. We will feel mere whifflers in our professed convictions,
principles, and creed, if we should permit ourselves to fall into the weakness
of abetting it even for a moment, which could only happen once the flambeau
of reason has ceased completely to burn. No one but the truckling lackeys of
the arrogant enemy could have the servility of applauding the implantation of
the criminal procedure in question.
All arguments and dissertations are useless to conceal the real fact. Behind
and under said criminal process stealthily crawls and trundles the Nippon
psychosis, like a cobra with fangs overflowing with venom. To ferret it out from
the hole where it lurks, waiting for its victims, and crush its head with one
hammer blow, is an imperative measure of national self-defense.
XI. THE PETITIONER IS ENTITLED, AS A MATTER OF ABSOLUTE
RIGHT, TO IMMEDIATE RELEASE
After showing the absolute nullity of the judicial process under which petitioner
has been convicted to suffer the penalty of life imprisonment, the inevitable
consequence is that he is entitled, as a matter of absolute right, to be
immediately released, so that he can once again enjoy a life of freedom, which
is the natural boon to law-abiding residents of our country, and of which he
was unjustly deprived through means most abhorrent to human conscience.
We must not hesitate for one moment to do our duty in this case. The sooner
we comply with it, the better. The process and judgement under which
petitioner has been convicted and is now undergoing an unjust imprisonment,
is one of the hateful vestiges left in our country by the moral savagery of a
people spiritually perverted and debased. The seriousness of this matter
cannot be viewed with insouciance. We must not lose time to wipe out such
vestiges if we must protect ourselves against their poisonous effects in our
political, social, and cultural patrimony.
We must erase those vestiges if we want to keep immune from all germs of
decay the democratic institutions which are the pride of our people and
country, under which we are enjoying the blessings of freedom and with which
we hope to assure the well-being and happiness of the unending generations
who will succeed us in the enjoyment of the treasures accumulated by a
bountiful nature in this Pearl of the Orient.
If we allow such vestiges to remain we are afraid that some historian may write
about Philippine democracy, Philippine race, and Philippine culture, what, on
ancient art, Hegel said in the "Phenomenology of the Spirit", according to
Kohler, the greatest work of genius that the nineteenth century has produced:
The statues set up are corpses in stone, whence the animating soul
has flown; while the hymns of praise are words from which all belief
has gone. The tables of the gods are bereft of spiritual food and drink,
and from his games and festivals, man no more receives the joyful
sense of his unity with the Divine Being. The works of the muse lack
the force and energy of the Spirit which derived the certainty and
assurance of itself just from the crushing ruin of goods and men. They
are themselves now just what they are for us beautiful fruit broken
off the tree, a kindly fate has passed on those works to us, as a maiden
might offer such fruit off tree. It is not their actual life as they exist, that
is given us, not the tree that bore them, not the earth and the elements,
which constituted their substance, nor the climate that determined
their constitutive character, nor the change of seasons which
controlled the process of their growth. So, too, it is not their living world
 that fate preserves and gives us with those works of ancient art, not
the spring and summer of that ethical life in which they bloomed and
ripened, but the veiled remembrance alone of this reality.
Our sense of national self-preservation compels us, as an imperative duty, not
only to restore immediately the petitioner to his personal liberty, but, all
possible means, to obliterate even the memory of the inquisitorial summary
procedure depicted in the present case.
Such procedure exhibits either inversion, retroversion, subversion, or
perversion of elemental human concepts. It ignores completely and debases
the high purposes of a judicial procedure. It represents a hylistic ideology
which proclaims the supremacy of the state force over fundamental human
rights. We must never allow the neck of our people to be haltered by the lethal
string of that ideology. It is a virus that must be eliminated before it produces
the logical disaster. Such ideology is a cancerous excrescence that must be
sheared, completely extirpated, from the live tissues of our body politic, if the
same must be saved.
We cannot understand how any one can justify the summary process in
question under the principles embodied in our Constitution. To profess
attachment to those principles and, at the same time, to accept and justify such
kind of criminal miscarriage of justice, is just sheer hypocrisy. It is a repetition
of what Seneca did when, after preaching moral virtues, justified without any
compunction the act of Nero, the sanguinary Roman Emperor, of murdering in
cold blood his own mother. It is reproducing the crooked mentality of
Torquemada, who, upon the pretext of combating and persecuting heresy to
save souls from hell, conceived the diabolical idea of condemning their victims
to an advanced version of hell in this life, and among those who suffered under
the same spirit of intolerance and bigotry which was its very essence are
counted some of the greatest human characters, such as Galileo, Giordano
Bruno, and Girolamo Savonarola. That procedure might find justification in the
thick heads of the Avars, Huns, Vandals, and Teutons, or in the stratified
mentality of Japanese cullions, but not in a healthy mind of a cultured person
of modern times. To allow any vestige any vestige of such procedure to remain
is tantamount to reviving the situation during which our citizens endured
sleepless nights in constant fear of the hobnail terror stalking in the darkness,
when their personal security and their life were hanging by the thin of chance.
We wish a way could be found to free completely our people of the sense of
shame, which they cannot help feeling, engendered by members of our race
who justified such abhorrent summary procedure and allowed themselves to
become a party to the execution of a scheme only acceptable to the
undeveloped mentalities of the dark ages. It is a shame that makes our blood
boil when we think that countrymen of Father Gomez, of Rizal, of Mabini, could
accept procedures representing the brutal ideology which is the very opposite
of the humane, lofty, and dignified ideology that placed said heroes and
martyrs among the purest and noblest specimens that humanity produced in
all countries, in all time, for all ones and light years to come.
It is with joy and pride that we agree with all our brethren in unanimously
granting petitioner the redress he seeks in his petition.
HILADO, J., concurring:
I concur in the result, as well as in the reasons stated in the majority opinion
not inconsistent with the views expressed in my dissenting opinion in G. R. No.
L-5, Co Kim Cham vs. Valdez Tan Keh and Dizon (p. 199, ante).
However, I would additionally base my conclusion upon broader grounds.
Firstly, I reiterate here by reference the arguments advanced in said dissenting
opinion in additional support of the conclusion that the writ
of mandamus herein sought should be granted. Secondly, the importance and
transcendence of the legal principles involved justify further elaboration.
From the allegations of the petition herein, it can be deduced that the petitioner
William F. Peralta was a "guerrillero" when he was arrested, tried and
convicted; and that he had never voluntarily submitted to the Japanese forces
in his civil capacity.
No attempt is made in the Solicitor General's answer to controvert the facts
alleged in the petition from which the foregoing deduction flows, and from the
record nothing appears which may tend to gainsay them. Even when he was
forced temporarily to join the Constabulary, which had been organized under
orders of the Japanese Army in the Philippines, he did so against his will.
Even granting for the sake of argument, and laying aside for the moment the
reasons to the contrary set forth in my aforesaid dissenting opinion, that the
rules of International Law regarding the power of a belligerent army of
occupation to establish a provisional government in an occupied enemy
territory, are still binding upon the United States and the Commonwealth of the
Philippines, yet such rules would not be any avail to bind the herein petitioner
by the laws, regulations, process and other acts of the so-called "Republic of
the Philippines", under and by virtue of which said petitioner has been
convicted to life imprisonment by the Court of Special and Exclusive Criminal
Jurisdiction of Manila in Criminal Case No. 66 thereof.
If we analyze the different adjudications and treatises which have been cited
in support of the validity or binding force of the acts of such provisional
governments, which have been variously called de facto governments, or
governments of paramount force, with a view to finding the real ground and
philosophical justification for the doctrine therein announced, we will see that
reason and that justification are made to consist in the submission of the
inhabitants upon whom the said acts have been held to be of obligatory or
binding force, to the army of occupation. Thus, to cite just a few typical
examples, we quote the following excerpts from three leading cases decided
by the Supreme Court of the United States:
Excerpts from Thorington vs. Smith (8 Wall. [U. S.], 1; 19 Law. ed., 361)
That while it (government of paramount force) exists, it must
necessarily be obeyed in civil matters by private citizens who, by acts
of obedience, rendered in submission to such force, do not become
responsible, as wrong-doers, for those acts, though not warranted by
the laws of the rightful government (p. 363; Emphasis ours).
The authority of the United States over the territory was suspended,
and the laws of the United States could no longer be rightfully enforced
there, or be obligatory upon the inhabitants who remained and
submitted to the conqueror. (P. 364; Emphasis ours.).
Excerpts from Fleming vs. Page (9 Howard. [U. S.], 603; 13 Law. ed., 276):
While it (Tampico) was occupied by our troops, they were in an
enemy's country, and not in their own; the inhabitants were still
foreigners and enemies, and owed to the United States nothing more
than thesubmission and obedience, sometimes called temporary
allegiance, which is due from a conquered enemy, when
he surrenders to a force which he is unable to resist. (P. 281;
Emphasis ours.)
Excerpts from United States vs. Rice (4 Wheat. [U. S.], 246; 4 Law. ed., 562):
The sovereignty of the United States over the territory was, of course,
suspended, and the laws of the United States could no longer be
rightfully enforced there, or be obligatory upon the inhabitants
whoremained and submitted to the conquerors. (P. 564; Emphasis
ours.)
It results from the above-quoted pronouncements of the Supreme Court of the
United States that the laws, regulations, processes and other acts of the
government that the occupying belligerent establishes are made binding only
and precisely upon those inhabitants from whom obedience could be
effectively exacted, namely, those who remain within the effective reach of the
occupying forces and submit to them. This is plain common sense. Those who
conceived and developed the doctrine could not logically have thought of the
army of occupation setting upon a civil government for those who still
continued resistance. As to them, further military operations would be
necessary to reduce them to submission, before one could think of civilly
governing them.
In the Philippines, during the occupation by the Japanese of Manila and certain
other portions of the Archipelago, the overwhelming majority of the people
never submitted to the Japanese invaders, and never recognized any legality
in the invasion of their country, and to the very date of liberation refused to
accept the alleged protection or benefits of the puppet governments of the
"Philippine Executive Commission" and the "Republic of the Philippines." The
majority of our people lived in the provinces, in the farms, hills and other places
beyond the effective reach of the Japanese military garrisons. Only a small
minority submitted to the invaders for various reasons, such as their having
been caught in Manila or other parts of the Island occupying government
positions, or residing therein without adequate facilities for escaping from or
evading said invaders, reasons of ill health, disabling them from living the hard
life of the mountains, hills, or country places, and the like.
To have bound those of our people who constituted the great majority who
never submitted to the Japanese oppressors, by the laws, regulations,
processes and other acts of those two puppet governments, would not only
have been utterly unjust and downright illegal, but would have placed them in
the absurd and impossible condition of being simultaneously submitted to two
mutually hostile governments, with their respective constitutional and
legislative enactments and institutions on the one hand bound to continue
owing allegiance to the United States and the Commonwealth Government,
and, on the other, to owe allegiance, if only temporary, to Japan. Among them
we find the petitioner William F. Peralta. The surrender of the Fil-American
forces in Bataan and Corregidor did not matter so far as this was concerned.
Much less did that surrender obligate all the civil population to submit to the
Japanese, and obey all their future dictations. If it did, President Roosevelt and
President Osmea would not have so heartily commended the Philippine
resistance movement and so enthusiastically extolled the firm stand of those
who participated therein, in the former's message of October 23, 1943, and in
the latter's speech of February 27, 1945, cited in the writer's above mentioned
dissenting opinion. If these historic utterances should seem incompatible with
any provision of the Hague Convention, we should understand from them that
both Presidents must have considered such provision as no longer applicable
to, or binding upon, the United States and the Philippines. Who knows but that
their attitude was based upon the renunciation of war as an instrument of
national policy by their respective peoples, which renunciation necessarily
includes all the "rights" or "powers" which may be claimed to be delivered from
war so employed? Or else, upon the ground that such provisions does not
support the wrongful acts of Japan in the Philippines?
Another reason advanced to justify the creation of a provisional civil
government, with its courts and other departments, in occupied enemy
territory, is the alleged convenience of the civil population. It can immediately
be asserted in reply that the convenience of the above-mentioned
overwhelming majority of our people, far from requiring the establishment of
such government, was in the very nature of things positively opposed thereto.
They not only did not need the supposed benefits of such a government, but
they actually reputed them as inimical to the larger interest of the very ideology
and cause for which they were continuing their resistance to those who would
extend here the brutal power and pernicious influence of the now exploded
"Greater East Asia Co-Prosperity Sphere." They suffered, yes, and suffered
much but they placed that ideology and that cause high above their private
comfort. Let us not penalize them for it. If this government is democratic, and
when it comes to a question of convenience, whose will and whose
convenience should prevail, that of the majority or that of the minority? Are we
going to force those free citizens of this free country to accept the alleged
benefits and assume the burdens of a government they have never consented
to own?
I am furthermore, of opinion that there is another important consideration which
argues against the recognition of the said government as a de
facto government or government of paramount force during the Japanese
occupation of the Philippine Islands. Japan, in starting and prosecuting this
war against the United States and her allies by breaking the most vital rules of
civilized warfare as prescribed by International Law, must be deemed to have
forfeited the right to invoke that law in so far as specific provisions thereof
would favor her or her acts. Japan in treacherously attacking Pearl Harbor and
the Philippines, successively on December 7 and 8, 1941, violated the rule
providing for the necessity of declaring war as established at the Hague
Conference of 1907 (Lawrence, Principles of International Law, 7th ed., pp.
321-322, 325); she has infringed the rule requiring that war prisoners be cared
for and treated with humanity (Ibid, p. 377); the rule imposing the obligation to
properly tend the sick and wounded (Ibid, 384), the rule interdicting bombing
of open and defenseless cities (Ibid, 522, 523) when she bombed Manila after
it had been declared an open city and all its military defenses had been
removed; the rule exempting noncombatants from personal injury (Ibid, 397)
her violations of one or the other of which were matters of daily occurrence,
one might say, during her three and a half years of tyranny and oppression in
this country, and were climaxed by the ignominious and indescribable
atrocities of the mass massacre of innocent civilians during the battle for
Manila. In the interpretation of doubtful provisions of International Law, Doctor
Lawrence, in his work cited above, has the following to say:
. . . If a point of Municipal Law is doubtful, men resort to supreme court
for a decision, or to a supreme legislature for an interpreting statute;
but if a point of International Law is doubtful, they can resort only to
general reasoning for a convincing argument, unless, indeed, they
settle the question by blows. And International Law in many of its
details is peculiarly liable to disputes and doubts, because it is based
on usage and opinion. He who in such a case bases his reasoning on
high considerations of morality may succeed in resolving the doubt in
accordance with humanity and justice. (Pp. 12, 13.).
It would seem that to deny Japan benefits, because she has refused to carry
the burdens of the law, is to base our reasoning "on high considerations of
morality", and to resolve any doubt, there be, as to the point in question, "in
accordance with humanity and justice." In other words (even if we applied said
rules to the instant case), Japan, under the circumstances of this case, could
not be heard to say that the government which she established here was a de
facto government, or a government of paramount force, as in the cases where
such a government was deemed to exist.
In additional to what has been said above, let us see if the Japanese-
sponsored "Republic of the Philippines" did not introduces such fundamental
and drastic changes in the political organization of this country, as it existed
upon the date of the Japanese invasion, as to vitiate with invalidity the acts of
all its department, executive, judicial, and legislative. To begin with, the
Commonwealth Constitution was completely overthrown. It was replaced by
the so-called constitution of the "Republic." A casual comparison of these two
instruments cannot fail to reveal a most revolutionary transformation of the
political organization of the country. While under the Commonwealth
Constitution the retention of American sovereignty over the Philippines is
expressly recognized, for the purposes specified in the ordinance appended
thereto, in the very preamble of the constitution of the "Republic" the
independence " of the Philippines is proclaim. While under the Commonwealth
Constitution the President and Vice-President are elected "by direct vote of the
people "Art. VII, sec. 2), under the constitution of the "Republic" the President
(no Vice-President is provided for) was elected "by majority of all the members
of the Assembly" (Art. II, sec. 2). While under Commonwealth Constitution the
legislative power is vested in a bicameral Congress with a Senate and a House
of Representatives (Art. VI, sec. 1), under the constitution of the "Republic"
that power was vested in a unicameral National Assembly (Art. III, sec. 1).
While under the Commonwealth Constitution the Senators are chosen at large
by the qualified electors of the Philippines (Art. VI, sec. 2) and the
Representatives by the qualified electors in the respective districts (Art. VI,
sec. 2) and the Representative by the qualified electors in the respective
districts (Art. VI, 5), under the constitution of the "Republic" the National
Assembly was composed of the provincial governors and city mayors as
members ex-oficio, and of delegate elected every three years, one from each
and every province and chartered city (Art. III, sec. 2), While under the
Commonwealth Constitution, respecting the Judicial Department, the
members of Supreme Court and all judges of inferior courts are appointed by
the President with the consent of the Commission on Appointments of the
Congress (Art. VII, sec.), under the constitution of the "Republic" the members
of the Supreme Court were appointed by the President with the advice of the
Cabinet, and all judges of interior courts, by the President with the advice of
the Supreme Court (Art. IV, sec. 4).
These changes and innovations can be multiplied many times, but the
foregoing will suffice for our purpose.
It has been said constantly in this discussion that political acts, or acts of a
political complexion of a de factogovernment of paramount force, are the only
ones vitiated with nullity. Of course, I disagree with those who so hold. But
even by this test the "Republic" or, which is the same, the Imperial Japanese
Forces which gave it birth in thus introducing such positive changes in the
organization of this country or suspending the working of that already in
existence, executed a political act so fundamental and basic in nature and
operation that all subsequent acts of the new government which of course had
to be based thereon, inevitably had to be contaminated by the same vitiating
defect.
Thus judicial acts done under his control, when they are not of a
political complexion, administrative acts so done, to the extent that
they take effect during the continuance of his control, and various acts
done during the same time by private persons under the sanction of
municipal law, remain good.. Political acts on the other hand fall
through as of course, whether they introduce any positive change into
the organization of the country, or whether they only suspend the
working of that already in existence. . . . (Hall, International Law, 6th
ed., p. 483; Emphasis ours.)
Finally, upon closed scrutiny, we will find that all of the de facto governments
or governments of paramount force which have been cited in all this discussion
were at the same time bona fide governments. The British established such a
government in Castine, and ran it is a purely British organization. The
Americans established another such government in Tampico, and ran it as an
American organization. The Confederate States established a like government
in the seceding States, and ran it as the Government of the Confederacy. They
were all frank, sincere, and honest in their deeds as well as in their words. But
what happened in this country during the Japanese occupation? When the
"Republic of the Philippines" was established on October 14, 1943, under
duress exerted by the Japanese Army, did the Japanese openly, frankly, and
sincerely say that government was being established under their orders and
was to be run subject to their direction and control? Far from it! They employed
all the means they could conceive to deceive the Filipino people and the
outside world that they had given the Filipinos their independence, and that
"Republic" thereunder. But behind the curtain, from beginning to end, there
was the Imperial Japanese Army giving orders and instructions and otherwise
directing and controlling the activities of what really was their creature for the
furtherance of their war aims. I cannot believe that those who conceived and
developed the doctrine of de facto government or government of paramount
force, ever intended to include therein such a counterfeit organization as the
Japanese contrived here an organization which, like its counterparts in
Manchukuo, Nanking, Burma, and Vichy, has been appropriately called
"puppet" by the civilized government of the world.
BRIONES, M., concurrente:
El mandamiento de habeas corpus que se solicita debe concederse.
La proclama del General McArthur de 23 de Octubre de 1944, lanzada cuatro
dias despues de su desembarco en Leyte con las fuerzas libertadoras, reza
en parte lo siguiente:
3. Que todas las leyes, regulaciones y procesos de cualquier otro
gobierno en Filipinas que no fuera el del Commonwealth son nulos e
invalidos y carecen de efecto legal en areas de Filipinas liberadas de
la ocupacion y control del enemigo.
Recientemente se ha discutido mucho en esta jurisdiccion sobre si la
anulacion de que trata dicha proclama puede referirse tambien a actuaciones
judiciales ( judicial processes). En el asunto de Co Kim Cham contra Valdez
Tan Keh y Dizon, R.G. No. L-5 (pag, 133, ante), he opinado afirmativamente,
esto es, que el alcance de esa proclama puede extenderse a veces a ciertos
actos o procesos judiciales. Reafirmo ahora mi opinion y con mayor vigor y
enfasis si cabe. Porque, a mi juicio, la sentencia de reclusion perpetua
impuesta al recurrente bajo la ocupacion militar japonesa es de aquellos actos
judiciales del passado regimen que por su naturaleza y circunstancias
reclaman una decidida y pronta accion de parte nuestra en el sentido de
anularla y dejarla sin efecto. Mis razones se exponen a continuacion.
Parece innegable que la ley procesal bajo la cual fue enjuiciado y convicto el
recurrente durante la ocupacion japonesa era absolutamente incompatible
con las salvaguardias y garantias de un proceso justo, imparcial y ordenado
que la constitucion y legislacion procesal del Commonwealth de Filipinas
otorgan a todo acusado en una causa criminal. Hay en dicha ley ciertos
aspectos decididamente repulsivos para una conciencia disciplinada en las
normas y pricipios de una democracia constitucional.
Bajo nuestro sistema procesal el acusado tiene derecho a que no se le ponga
en situacion de acriminarse. Tiene a derecho a callarse sin que esto pueda
astribuirsele cargo inculpatorio alguno. Este es un derecho fundamental,
garantido por la constitucion.
Empero bajo el sistema procesal que se discute, "la negativa del acusado a
constestar cualqueira pregunta formulada por el tribunal o permitida por el
mismo, puede ser considerada en contra de dicho acusado." (Seccion 21,
Orden Ejecutiva No. 157.) Bajo este mismo sistema el caracter sumarisimo
del proceso llega a tal extremo que "una sentencia condenatoria puede
dictarse inmediatemente contra el acusado siempre que los hechos
discubiertos en el interrogatorio preliminar demuestren que el acusado es
culpable."
Bajo el sistema procesal del Commonwealth, cualquier acusado convicto ante
el Juzgado de Primera Instancia tiene el derecho de apelar de la sentencia
para ante el Tribunal superior de revision; y en los casos de condena
areclusion perpetua o a muerte, el Tribunal Supremo es el llamado a revisar
la causa, siendo compulsoria la revision en el caso de condena a muerte. Esta
jurisdiccion del Tribunal Supremo en los casos de condena areclusion
perpetua y a muerte no se halla estatuida simplemente por una ley ordinaria,
sino que esta proveida en la misma constitucion del Commonwealth. Asi que
el derecho del condenado a reclusion perpetua o a muerte para que se revise
su cuasa por el Tribunal Supremo es constitucional y, por ende, no puede ser
abolido por un simple fiat legislativo.
En cambio, bajo el sistema procesal en controversia las sentencias de los
tribunales o sumarias eran de caracter final, excepto cuando la pena impuesta
fuera la de muerte, en cuyo caso los autos se elevaban en consulta a una
division especial del Tribunal Supremo compuesta de tres miembros
(Ordenanza No. 7 de la llamada Republica de Filipinas por la que se crearon
las tribunales especiales o sumarios). De modo que en esta ordenanza no
solo se suprimia de una plumada el derecho de apelar reconocido y
establecido por la legislacion procesal del Commonwealth aun en los casos
de delitos y penas ordinarios, sino que inclusive quedaba abolido el derecho
de apelar otorgado por la constitucion del Commonwealth al acusado
condenado a reclusion perpetua. Por este motivo el recurrente, a quien se le
habia impuesto esta pena por el alergado delito de robo, no pudo apelar de al
sentencia para ante el Tribunal Supremo.
La cuestion que ahora tenemos que determinar y resolver es si debemos
reconocer validez y eficacia en la sentencia por la cual el recurrente se halla
extinguiendo su condena de reclusion perpetua, o debemos anularla ahora
que esta en nuestras manos el poder hacerlo, restablecida como esta
enteramente la normalidad juridica y constitucional en nuestro pais.
En favor de la validez de dicha sentencia se arguye que fue dictada por un
tribunal creado por un gobierno de jure; que aun admitiendo el caracter
inquisitorial, anti democratico de la ley procesal bajo la cual fue enjuiciado el
acusado, el gobierno de facto era dueo de establecer los procedimientos
legales que quisiera; y que, segun las reglas y doctrinas conocidas de derecho
international, las sentencias por "crimenes de guerra" o delitos politicos"
generalmente validas aun despues de restablecido el gobierno de jure. Se
alega que en estos casos el derecho no tiene mas remedio que ceder a la
fuerza, aceptando la realidad de los hechos consumados.
Se admite, sin embargo, que la regla tiene sus excepciones. Una de allas
esque "los actos del ocupante militar que rebasen su poder a tenor del criterio
establecido en el articulo 43 de las Regulaciones de La Haya, son nulos y sin
efecto con relacion al gobierno legitimo." (Wheaton's International Law, 7th ed.
[1944], p. 245.) Segun esto, las sentencias por "crimenes de guerra" o "delitos
politicos" cometidos durante la ocupacion son, por razones pecfetamente
comprensibles, nulas e invalidas al restablecerse la soberania legitima.
Tambien quedan comprendidos bajo esta excepcion los denominados actos
de caracter o complexion politica.
Otra limitacion a los poderes de un gobierno de ocupacion militar es que
elejercicio de tales poderes debe extenderse tan solo hasta donde fuese
necesario para su seguridad y el exito de sus operaciones, teniendo
particularmente en cuental el caracter transeunte de su occupacion. Como
regla general, al invasor se le prohibe alterar o suspender las leyes referentes
a la propiedad y a las relaciones personales privadas, o las leyes que regulan
el orden moral de la comunidad. (Hall, Treatise on International Law, 7th ed.,
498,499). Lo que se hace fuera de estas limitaciones es en exceso de su
competencia y es generalmente nulo al rstaurarse la soberania legitima.
Otra excepcion es la que se refiere a los actos de un gobierno de
facto resultante de una insurreccion, rebelion, revolucion o guerra civil. A
esteefecto se ha declarado, peo ejemplo. que los actos en fomento o apoyo
de unarebelion contra los Estados Unidos, o encaminados a anular los justos
derechos de los ciudadanos, y otros actos de igual indole, deben ser
considerados, por lo general, invalidos y nulos (Texas vs. White, 74 U. S.,733;
19 Law, ed., 240). En otro caso se ha declaro la validez de ciertos actos
judiciales o legislativos en estados insurreccionados, siempre que su
proposito o modo de operacion no fuerte hostil a la autoridad del gobierno
nacional, o no conculcaren derechos de los ciudadanos bajo la Constitucion.
Horn vs. Lockhart, 17 Well, 570-581; 2 Law. ed., 660.)
Visto el caso que nos ocupa a la luz de estas doctrinas, cual de ellas
debemos adoptar para determinar si es o no valida la sentencia por la la cual
el recurrente sufre ahora pena de reclusion perpetua y pide ser liberado
mediante peticion de habeas corpus?
Se aservera que no procede aplicar al presente caso la doctrina establecida
en la jurisprudencia americana sobre gobiernos de facto resultantes de una
insureccion, revolucion o guerra civil porque evidentemente la llamada
Republica de Filipinas instaurada durante la ocupacion militar japonesa no
tenia este caracter, sino que era mas bien un gobierno establecido
mediantefuerza y coaccion por los mismos invasores para promover ciertos
designios politicos relacionados con sus fines de guerra. En otras palabras,
era el mismo gobierno militar de ocupacion con fachada filipina arreglada y
arbitrada coercitivamente.
Mientras estoy conforme con una parte de la asercion, esto es, que la aludida
republica no tenia caracter insurreccional ni revolucionario, en disfrute de
plena autonomia, sino que era simple producto de la coaccion y estaba
mediatizada continuamente por el invasor, difiero de la otra parte, aquella que
declara inaplicable la conocida doctrina americana mencionada arriba sobre
gobiernos de facto establecidos en el curso de una insurreccion, revolucion o
guerra civil. Y la razon es sencilla. Si a un gobierno de factode este ultimo tipo
gobierno establecido, despues de todo, por compatriotas,por
conciudadanos se le coarta con la restriccion de que sus actos legislativos
o judiciales, en tanto son validos, al restaurarse el regimende jure, en cuanto
no conculcaren los derechos justos de los ciudadanos, a los derechos
garantidos por la constitucion, parece que no existe ninguna razon por que no
se ha de aplicar la misma restriccion al gobierno de facto establecido como
incidente de una guerra entre dos naciones independientes y enemigas. En
realidad, la razon de nulidad es mucho mas poderosa y fuertecuando, en su
caso como el de Filipinas, el enemigo invasor incio la agresion de una manera
inicua y traicionera y la ejecuto luego con vesania y sadismo que llegaron a
extremos inconcebibles de barbarie. En este caso la conculcacion de los
justos derechos de los ciudadanos, o de los derechos garantidos por la
constitucion cobra proporciones de mucha mayor gravedad porque viene a
ser tan solo parte de un vasto plan de rapia, devastacion y atrocidades de
todo genero cometidas contra la humanidad y contra las leyes y usos de la
guerra entre naciones civilizadas. El invasor, en este caso, es como el foragido
que se coloca fuera de toda ley. Por tanto, no hay absolutamente ninguna
razon para no aplicarle una restriccion que se estimabuena para el insurrecto
o revolucionario.
La ventaja de extender hasta cierto punto la doctrina sobre gobiernos de
facto resultantes de una insurreccion, rebelion o guerra civil a gobiernos de
facto establecidos como incidente en el curso de una guerra entre dos
naciones independeientes enemigas es que, frente a casos de conculcacion
de los justos derechos de los ciudadanos, o de los garantidos por
laconstitucion para los efectos de declararlos validos o nulos al restablecerse
el gobierno de jure, ya no se hace preciso examinar si los actos conculcatorios
fueron motivados por razones o exigencias de las seguridad y exito de las
operaciones del ocupante militar, sino que la piedra de toque de la validez o
nulidad viene a ser tan solo el acto positivo mismo de la conculcacion.
Esta forma de racioncinio no solo no es heterodoxa a la luz de los
pincipiosestablecidos de derecho internacional, sino parece ser una logica
inferenciade los mismos. Ya hemos visto que al ocupante militar en el curso
de unaguerra internacional se le prohibe, como regla general, alterar o
suspenderlas leyes referentes a la propiedad y a las relaciones personales
privadas, olas leyes que regulan el orden moral de la comunidad. (Hall,
Treatise on International Law, supra.) Ahora cabe preguntar: Son los justos
derechos de los ciudadanos, o los fundamentales garantidos por la
constitucion inferiores en categoria a la propiedad, o las relaciones personales
privadas, o al ordenmoral de la comunidad? No son en cierto sentido hasta
superiores? Por tanto,a nadie debe chocar que la prohibicion se extienda a
estas materias. Es unainclusion y perfectamente natural, mas que justificada
por los avances y conquistas del moderno derecho internacional. Notese que
en las fraguas de esta ultima guerra se han forjado unas modalidades juridicas
harto originalesque denotan el esfuerzo supremo y gigante dela humanidad
por superar la barbarie y por dar al traste con las formulas arcaicas,
reaccionarias. Para citar solamente algunos ejemplos los mas destados,
tenemos el enjuiciamento de los llamados criminales de la guerra, y la
responsabilidad que se exige a los jefes militares por las atricidades cometidas
por las tropas bajo su mando.
Mi conclusion, por tanto, es que desde cualquier angulo que se mire la
sentencia impuesta al recurrente por el tribunal sumario de la llamada
republica de Filipinas debe ser declarada nula, acotando las palabras
delProcurador General, "no solo por razones fundadas en principios de
derecho internacional, sino tambien por la mas apremiante y poderosa de las
razones,la de preservar y salvaguardar a nuestros ciudadanos de los actos
del enemigo."
Dar validez a esa sentencia ahora, en plena atmosfera de libertad que respiran
a pulmon lleno de resto de nuestros conciudadanos menos el recurrente y
otras que corrieron su suerte durante la ocupacion japonesa,equivaldria tanto
como prolongar el regimen de opresion bajo el cual se tramito y se dicto la
referida sentencia. Es mas, equivaldria a sancionar laideologia totalitaria,
despotica, medieval contra la cual nuestro pueblo lucho tan heroicamente
jugandose todo; vida libertad y bienes materiales.
Ciertamente no nos hemos librado de la opresion para llegar a tan
irrisorioresultado.
Concedase el remedio pedido.