CONSTITUTIONAL LAW 2, JUDICIAL INQUIRY Petitioner Dumlao alleges that the aforecited provision is directed insidiously

against him, and that the classification provided therein is based on "purely
G.R. No. L-52245 January 22, 1980 arbitrary grounds and, therefore, class legislation."

PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, For their part, petitioners igot and Salapantan, Jr. assail the validity of the
JR., petitioners, following statutory provisions:
vs.
COMMISSION ON ELECTIONS, respondent. Sec 7. Terms of Office Unless sooner removed for cause, all local
elective officials hereinabove mentioned shall hold office for a term of
Raul M. Gonzales for petitioners six (6) years, which shall commence on the first Monday of March
Office of the Solicitor General for respondent. 1980.

MELENCIO-HERRERA, J: .... (Batas Pambansa Blg. 51) Sec. 4.

This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Sec. 4. ...
Order filed by petitioners, in their own behalf and all others allegedly similarly
situated, seeking to enjoin respondent Commission on Elections (COMELEC) Any person who has committed any act of disloyalty to the State,
from implementing certain provisions of Batas Pambansa Big. 51, 52, and 53 including acts amounting to subversion, insurrection, rebellion or other
for being unconstitutional. similar crimes, shall not be qualified to be a candidate for any of the
offices covered by this Act, or to participate in any partisan political
The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of activity therein:
Nueva Vizcaya, who has filed his certificate of candidacy for said position of
Governor in the forthcoming elections of January 30, 1980. Petitioner, Romeo provided that a judgment of conviction for any of the aforementioned
B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such, crimes shall be conclusive evidence of such fact and
has taken his oath to support the Constitution and obey the laws of the land.
Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a the filing of charges for the commission of such crimes before a civil
resident of San Miguel, Iloilo. court or military tribunal after preliminary investigation shall be prima
fascie evidence of such fact.
Petitioner Dumlao specifically questions the constitutionality of section 4 of
Batas Pambansa Blg. 52 as discriminatory and contrary to the equal protection ... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied).
and due process guarantees of the Constitution. Said Section 4 provides:
Section 1. Election of certain Local Officials ... The election shall be
Sec. 4. Special Disqualification in addition to violation of section 10 of held on January 30, 1980. (Batas Pambansa, Blg. 52)
Art. XI I-C of the Constitution and disqualification mentioned in existing
laws, which are hereby declared as disqualification for any of the Section 6. Election and Campaign Period The election period shall
elective officials enumerated in section 1 hereof. be fixed by the Commission on Elections in accordance with Section
6, Art. XII-C of the Constitution. The period of campaign shall
Any retired elective provincial city or municipal official who has commence on December 29, 1979 and terminate on January 28,
received payment of the retirement benefits to which he is entitled 1980. (ibid.)
under the law, and who shall have been 6,5 years of age at the
commencement of the term of office to which he seeks to be elected
In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr.
shall not be qualified to run for the same elective local office from
also question the accreditation of some political parties by respondent
which he has retired (Emphasis supplied)
COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground that it
is contrary to section 9(1)Art. XIIC of the Constitution, which provides that a
"bona fide candidate for any public office shall be it. from any form of
harassment and discrimination. "The question of accreditation will not be taken
up in this case but in that of Bacalso, et als. vs. COMELEC et als. No. L-52232)
where the issue has been squarely raised,
Petitioners then pray that the statutory provisions they have challenged be
declared null and void for being violative of the Constitution.
I . The procedural Aspect
At the outset, it should be stated that this Petition suffers from basic procedural
infirmities, hence, traditionally unacceptable for judicial resolution. For one,
there is a misjoinder of parties and actions. Petitioner Dumlao's interest is alien
to that of petitioners Igot and Salapantan Petitioner Dumlao does not join
petitioners Igot and Salapantan in the burden of their complaint, nor do the
latter join Dumlao in his. The respectively contest completely different statutory
provisions. Petitioner Dumlao has joined this suit in his individual capacity as
a candidate. The action of petitioners Igot and Salapantan is more in the nature
of a taxpayer's suit. Although petitioners plead nine constraints as the reason
of their joint Petition, it would have required only a modicum more of effort tor
petitioner Dumlao, on one hand said petitioners lgot and Salapantan, on the
other, to have filed separate suits, in the interest of orderly procedure.
For another, there are standards that have to be followed inthe exercise of the
function of judicial review, namely (1) the existence of an appropriate case:,
(2) an interest personal and substantial by the party raising the constitutional
question: (3) the plea that the function be exercised at the earliest opportunity
and (4) the necessity that the constiutional question be passed upon in order
to decide the case (People vs. Vera 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with, which is,
that the parties have raised the issue of constitutionality early enough in their
pleadings.
This Petition, however, has fallen far short of the other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the determination of
actual cases and controversies.
Petitioner Dumlao assails the constitutionality of the first paragraph of section
4 of Batas Pambansa Blg. 52, quoted earlier, as being contrary to the equal
protection clause guaranteed by the Constitution, and seeks to prohibit
respondent COMELEC from implementing said provision. Yet, Dumlao has not
been adversely affected by the application of that provision. No petition
seeking Dumlao's disqualification has been filed before the COMELEC. There
is no ruling of that constitutional body on the matter, which this Court is being
asked to review on Certiorari. His is a question posed in the abstract, a
hypothetical issue, and in effect, a petition for an advisory opinion from this
Court to be rendered without the benefit of a detailed factual record Petitioner
Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion
of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978])
of respondent COMELEC as provided for in section 2, Art. XII-C, for the
Constitution the pertinent portion of which reads:
"Section 2. The Commission on Elections shall have the following power and
functions:
1) xxx
2) Be the sole judge of all contests relating to the elections, returns
and qualifications of all members of the National Assembly and
elective provincial and city officials. (Emphasis supplied)
The aforequoted provision must also be related to section 11 of Art. XII-C,
which provides:
Section 11. Any decision, order, or ruling of the Commission may be
brought to the Supreme Court on certiorari by the aggrieved party
within thirty days from his receipt of a copy thereof.
B. Proper party.
The long-standing rule has been that "the person who impugns the validity of
a statute 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"
(People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the hearing,
not in their Petition, that Igot is said to be a candidate for Councilor. Even then,
it cannot be denied that neither one has been convicted nor charged with acts
of disloyalty to the State, nor disqualified from being candidates for local
elective positions. Neither one of them has been calle ed to have been
adversely affected by the operation of the statutory provisions they assail as
unconstitutional Theirs is a generated grievance. They have no personal nor
substantial interest at stake. In the absence of any litigate interest, they can
claim no locus standi in seeking judicial redress.
It is true that petitioners Igot and Salapantan have instituted this case as a
taxpayer's suit, and that the rule enunciated in People vs. Vera, above stated,
has been relaxed in Pascual vs. The Secretary of Public Works (110 Phil. 331
[1960], thus:
... it is well settled that the validity of a statute may be contested only
by one who will sustain a direct injury in consequence of its
enforcement. Yet, there are many decisions nullifying at the instance
of taxpayers, laws providing for the disbursement of public funds, upon
the theory that "the expenditure of public funds, by an officer of the
State for the purpose of administering an unconstitutional act
constitutes a misapplication of such funds," which may be enjoined at
the request of a taxpayer.
In the same vein, it has been held:
In the determination of the degree of interest essential to give the
requisite standing to attack the constitutionality of a statute, the
general rule is that not only persons individually affected, but also
taxpayers have sufficient interest in preventing the illegal expenditure
of moneys raised by taxation and they may, therefore, question the
constitutionality of statutes requiring expenditure of public moneys.
(Philippine Constitution Association, Inc., et als., vs. Gimenez, et als.,
15 SCRA 479 [1965]).
However, the statutory provisions questioned in this case, namely, sec. 7, BP
Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the
disbursement of public funds. 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 protections against abuses of legislative power" (Flast
v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds
by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110
Phil. 331 [1960]), 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.
(Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]),
citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]).
Besides, the institution of a taxpayer's suit, per se is no assurance of judicial
review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]),
speaking through our present Chief Justice, this Court is vested with discretion
as to whether or not a taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a wellsettled rule that the
constitutionality of an act of the legislature will not be determined by the courts
unless that question is properly raised and presented in appropriate cases and
is necessary to a determination of the case; i.e., the issue of constitutionality
must be the very lis mota presented."
We have already stated that, by the standards set forth in People vs. Vera, the
present is not an "appropriate case" for either petitioner Dumlao or for
petitioners Igot and Salapantan. They are actually without cause of action. It
follows that the necessity for resolving the issue of constitutionality is absent,
and procedural regularity would require that this suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the challenged
provisions, the Courts not being entirely without discretion in the matter. Thus,
adherence to the strict procedural standard was relaxed in Tinio vs. Mina(26
SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs.
Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases
having been penned by our present Chief Justice. The reasons which have
impelled us are the paramount public interest involved and the proximity of the
elections which will be held only a few days hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory
against him personally is belied by the fact that several petitions for the
disqualification of other candidates for local positions based on the challenged
provision have already been filed with the COMELEC (as listed in p. 15,
respondent's Comment). This tellingly overthrows Dumlao's contention of
intentional or purposeful discrimination.
The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of
equal protection is neither well taken. The constitutional guarantee of equal
protection of the laws is subject to rational classification. If the groupings are
based on reasonable and real differentiations, one class can be treated and
regulated differently from another class. For purposes of public service,
employees 65 years of age, have been validly classified differently from
younger employees. Employees attaining that age are subject to compulsory
retirement, while those of younger ages are not so compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require that
candidates should not be more than 65 years of age at the time they assume
office, if applicable to everyone, might or might not be a reasonable
classification although, as the Solicitor General has intimated, a good policy of
the law would be to promote the emergence of younger blood in our political
elective echelons. On the other hand, it might be that persons more than 65
years old may also be good elective local officials.
Coming now to the case of retirees. Retirement from government service may
or may not be a reasonable disqualification for elective local officials. For one
thing, there can also be retirees from government service at ages, say below
65. It may neither be reasonable to disqualify retirees, aged 65, for a 65 year
old retiree could be a good local official just like one, aged 65, who is not a
retiree.
But, in the case of a 65-year old elective local official, who has retired from a
provincial, city or municipal office, there is reason to disqualify him from
running for the same office from which he had retired, as provided for in the
challenged provision. The need for new blood assumes relevance. The
tiredness of the retiree for government work is present, and what is
emphatically significant is that the retired employee has already declared
himself tired and unavailable for the same government work, but, which, by
virtue of a change of mind, he would like to assume again. It is for this very
reason that inequality will neither result from the application of the challenged
provision. Just as that provision does not deny equal protection neither does it
permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons
similarly situated are sinlilarly treated.
In fine, it bears reiteration that the equal protection clause does not forbid all
legal classification. What is proscribes is a classification which is arbitrary and
unreasonable. That constitutional guarantee is not violated by a reasonable
classification based upon substantial distinctions, where the classification is
germane to the purpose of the law and applies to all Chose belonging to the
same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas,
18 SCRA 606 [1966]; Rafael v. Embroidery and Apparel Control and
Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs. Hernandez 101
Phil. 1155 [1957]). The purpose of the law is to allow the emergence of
younger blood in local governments. The classification in question being
pursuant to that purpose, it cannot be considered invalid "even it at times, it
may be susceptible to the objection that it is marred by theoretical
inconsistencies" (Chief Justice Fernando, The Constitution of the Philippines,
1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of the clear
invalidity of the questioned provision. Well accepted is the rule that to justify
the nullification of a law, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and equivocal breach. Courts are practically
unanimous in the pronouncement that laws shall not be declared invalid unless
the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs.
COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14; Dodd,
Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the
compentence of the legislature to prescribe qualifications for one who desires
to become a candidate for office provided they are reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned, the second
paragraph of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and
which they challenge, may be divided in two parts. The first provides:
a. judgment of conviction jor any of the aforementioned crimes shall
be conclusive evidence of such fact ...
The supremacy of the Constitution stands out as the cardinal principle. We are
aware of the presumption of validity that attaches to a challenged statute, of
the well-settled principle that "all reasonable doubts should be resolved in
favor of constitutionality," and that Courts will not set aside a statute as
constitutionally defective "except in a clear case." (People vs. Vera, supra).
We are constrained to hold that this is one such clear case.
Explicit is the constitutional provision that, in all criminal prosecutions, the
accused shall be presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973
Constitution). An accusation, according to the fundamental law, is not
synonymous with guilt. The challenged proviso contravenes the constitutional
presumption of innocence, as a candidate is disqualified from running for
public office on the ground alone that charges have been filed against him
before a civil or military tribunal. It condemns before one is fully heard. In
ultimate effect, except as to the degree of proof, no distinction is made
between a person convicted of acts of dislotalty and one against whom
charges have been filed for such acts, as both of them would be ineligible to
run for public office. A person disqualified to run for public office on the ground
that charges have been filed against him is virtually placed in the same
category as a person already convicted of a crime with the penalty
of arresto, which carries with it the accessory penalty of suspension of the right
to hold office during the term of the sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima facie evidence,
and therefore, may be rebutted, yet. there is "clear and present danger" that
because of the proximity of the elections, time constraints will prevent one
charged with acts of disloyalty from offering contrary proof to overcome
the prima facie evidence against him.
Additionally, it is best that evidence pro and con of acts of disloyalty be aired
before the Courts rather than before an administrative body such as the
COMELEC. A highly possible conflict of findings between two government
bodies, to the extreme detriment of a person charged, will thereby be avoided.
Furthermore, a legislative/administrative determination of guilt should not be
allowed to be substituted for a judicial determination.
Being infected with constitutional infirmity, a partial declaration of nullity of only
that objectionable portion is mandated. It is separable from the first portion of
the second paragraph of section 4 of Batas Pambansa Big. 52 which can stand
by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang
52 is hereby declared valid. Said paragraph reads:
SEC. 4. Special disqualification. In addition to violation of Section
10 of Article XII(C) of the Constitution and disqualifications mentioned
in existing laws which are hereby declared as disqualification for any
of the elective officials enumerated in Section 1 hereof, any retired
elective provincial, city or municipal official, who has received payment
of the retirement benefits to which he is entitled under the law and who
shall have been 65 years of age at the commencement of the term of
office to which he seeks to be elected, shall not be qualified to run for
the same elective local office from which he has retired.
2) That portion of the second paragraph of section 4 of Batas
Pambansa Bilang 52 providing that "... the filing of charges for the
commission of such crimes before a civil court or military tribunal after
preliminary investigation shall be prima facie evidence of such fact", is
hereby declared null and void, for being violative of the constitutional
presumption of innocence guaranteed to an accused.
SO ORDERED.
Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur.
Fernando, C.J., concurs and submits a brief separate opinion.
De Castro, J., abstain as far as petitioner Dumlao is concerned.
Separate Opinions
BARREDO, J., concurring:
But as regards the matter of equal protection, I reiterate my view for Peralta
that Sec. 9(1) Art. XI I is more expensive than the equal protection clause.
AQUINO, J, concurring:
concur in the result as to paragraph I of the dispositive part of the decision. I
dissent as to paragraph 2. In my opinion, paragraph 2, section 4 of Batas
Pambansa Bilang 52 is valid, being similar to certain presumptions in Articles
217 and 315 of the Penal Code, as amended by Republic Act No. 4885. See
U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.
ABAD SANTOS, J., concurring:
concur but wish to add that a judgment of conviction as provided in Sec. 4,
par. 2 of Batas Pambansa Big. 52 should be one which is final and
unappealable.
FERNANDO, C.J., concurring.
It is particularly gratifying that the reiteration in the ably-written and scholarly
opinion of the Court, penned by Justice Melencio-Herrera, of the standard that
must be met before the power of judicial review may be availed of, set forth
with such lucidity and force by Justice Laurel in the two leading cases
of Angara v. Electoral Commission1 and People v. Vera, 2 did not constitute an
obstacle to this Court ruling on the crucial constitutional issues raised. It was
a cause for concern, for me at least, that counsel of private parties in not a few
cases in the recent past had shown less than full awareness of the doctrines,
procedural in character, that call for application whenever the exercise of this
awesome and delicate responsibility of adjudging the validity of a statute or
presidential decree is invoked. 3 While this Court cannot be accused of being
bound by the letters of judicial timidity, it remains true that no cavalier disregard
of tried and tested concepts should be given encouragement. A petitioner who
bases his claim for relief on asserted constitutional deficiencies deserves to be
heard. That goes without saying. For the judiciary must ever endeavor to
vindicate rights safeguarded by the fundamental law. In that sense, this
Tribunal is not susceptible to the reproach that it has imprisoned itself in its
allegiance to the philosophy of judicial self-restraint. There are, however, limits
to judicial activism. It cannot be too strongly stressed that a petition of this
character must ever remain an orderly proceeding that cannot be oblivious of
the requisites to be complied with to justify a pronouncement on constitutional
issues. Where there is exuberance in the exercise of judicial power, the forms
of litigation are but slight retaining walls. It is right and proper that the voice of
the Solicitor General should be heard in protest against such neglect of
rudimentary precepts. Necessarily then, whenever objections based on refusal
to abide by the procedural principles are presented, this Court must rule. It
would suffice if thereby the petition is dismissed for non-observance of the
controlling doctrines. There are times, however, when the controversy is of
such a character that to resolve doubts, erase uncertainty, and assure respect
for constitutional limitations, this Tribunal must pass on the merits. This is one
such case. I therefore concur with the opinion of the Court.
It may be a task of superfluity then to write a concurring opinion. Nonetheless,
a few words may not be amiss on what for me is the proper approach to take
as to the lack of power of this Court to pass on the motives of the legislative
body, on the lack of persuasiveness of petitioner's argument based on the
equal protection guarantee, and on the fundamental concept of fairness of
which the due process clause is an embodiment, thus calling for the
nullification of the disqualification of a candidate upon the mere filing of
charges against him.
1. The challenge to the provision in question is predicated on what was
referred to as "a known fact in the province of Nueva Vizcaya that the aforesaid
provision was concocted and designed precisely to frustrate any bid of herein
petitioner to make a political come back [sic] as governor of Nueva Vizcaya.
The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds
are known to be possessed by him because he was a former elective provincial
official who has received his retirement benefits, he desires to run for the same
elective office and at the commencement of the term of office to which he now
seeks to be elected, he shall have reached 65 years of age. 4 Clearly then, the
plea for invalidating such provision is the motive attributed to the
Interim Batasang Pambansa. For petitioner, it amounted to a constitutional
infirmity fatal in character. The weakness of the petition is thus apparent. No
decision of this Tribunal can be cited in support of such a proposition. It would
be to extend unduly the concept of judicial review if a court can roam far and
wide and range at will over the variety and diversity of the reasons, the
promptings that may lead a legislator to cast his vote for or against a proposed
legislation. It is not what inspired the introduction of a bill but the effect thereof
if duly enacted that is decisive. That would be the test for its validity or lack of
it. There is this relevant excerpt fromMcCray v. United States: 5 "The decisions
of this Court [Supreme Court of the United States] from the beginning lend no
support whatever to the assumption that the judiciary may restrain the exercise
of lawful power on the assumption that a wrongful purpose of motive has
caused the power to be exerted. 6 The late Chief Justice Warren, who penned
the opinion inUnited States v. O' Brien 7 put the matter thus: "Inquiries into
congressional motives or purposes are a hazardous matter. When the issue is
simply the interpretation of legislation, the Court will look to statements by
legislators for guidance as to the purpose of the legislature, because the
benefit to sound decision-making in this circumstance is thought sufficient to
risk the possibility of misreading Congress' purpose. It is entirely a different
matter when we are asked to void a statute that is, under well-settled criteria,
constitutional on its face, on the basis of what fewer than a handful of
Congressmen said about it. What motivates one legislator to make a speech
about a statute is not necessarily what motivates scores of others to enact it,
and the stakes are sufficiently high for us to eschew guesswork. We decline to
void essentially on the ground that it is unwise legislation which Congress had
the undoubted power to enact and which could be reenacted in its exact form
if the same or another legislator made a 'wiser' speech about it." 8
2. If, however, the provision in question is susceptible to the reproach that it
amounts to a denial of equal protection, then his plea for nullification should
be accorded a sympathetic response. As the opinion of the Court makes clear,
such imputation is not deserving of credence. The classification cannot be
stigmatized as lacking in rationality. It is germane to the subject. Age, as well
as the fact of retirement and the receipt of retirement benefits are factors that
can enter into any legislative determination of what disqualifications to impose.
As was pointed out in J.M. Tuason and Co., Inc. v. Land Tenure
Administration: 9 "It suffices then that the laws operate equally and uniformly
on all persons under similar circumstances or that all persons must be treated
in the same manner, the conditions not being different, both in the privileges
conferred and the liabilities imposed. Favoritism and undue preference cannot
be allowed. For the principle is that equal protection and security shall be given
to every person under circumstances, which if not Identical, are analogous. If
law be looked upon in terms of burden or charges, those that fall within a class
should be treated in the same fashion, whatever restrictions cast on some in
the group equally binding on the rest. 10 It cannot be denied that others similarly
fall under the same ban. It was not directed at petitioner solely. The most that
can be said is that he falls within the-proscribed class. The point was likewise
raised as to why should national officials be excluded in the above provision.
The answer is simple. There is nothing to prevent the legislative body from
following a system of priorities. This it did under the challenged legislative
provision. In its opinion, what called for such a measure is the propensity of
the local officials having reached the retirement age and having received
retirement benefits once again running for public office. Accordingly, the
provision in question was enacted. A portion of the opinion in the aforesaid
J.M. Tuason and Co., Inc. finds relevance: "It was confronted with a situation
that caned for correction, and the legislation that was the result of its
deliberation sought to apply the necessary palliative. That it stopped short of
possibly attaining the cure of other analogous ills certainly does not stigmatize
its effort as a denial of equal protection. We have given our sanction to the
principle underlying the exercise of police power and taxation, but certainly not
excluding eminent domain, that 'the legislature is not required by the
Constitution to adhere to the policy of all "or none." ' Thus, to reiterate, the
invocation by petitioner of the equal protection clause is futile and unavailing
." 11
3. That brings us to the assailed provision as to the sufficiency of the filing of
charges for the commission of such crimes as subversion, insurrection,
rebellion or others of similar nature before a civil court or military tribunal after
preliminary investigation, being a prima facie evidence of such fact and
therefore justifying the disqualification of a candidate. The opinion of the Court
invoked the constitutional presumption of innocence as a basis for its being
annulled. That conclusion is well-founded. Such being the case, I am in full
agreement. I would add that such a provision is moreover tainted with
arbitrariness and therefore is violative of the due process clause. Such a
constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a
mere formality that may be dispensed with at will. Its disregard is a matter of
serious concern. It is a constitutional safeguard of the highest order. It is a
response to man's innate sense of justice." 13 As rightfully stressed in the
opinion of the Court, the time element may invariably preclude a full hearing
on the charge against him and thus effectively negate the opportunity of an
individual to present himself as a candidate. If, as has been invariably the case,
a prosecutor, whether in a civil court or in a military tribunal saddled as he is
with so many complaints filed on his desk would give in to the all-too-human
propensity to take the easy way out and to file charges, then a candidate
Would be hard put to destroy the presumption. A sense of realism for me
compels a declaration of nullity of a provision which on its face is patently
offensive to the Constitution.
Hence my concurrence.
TEEHANKEE, J., dissenting:
Files a separate opinion dissenting from the adverse ruling on Dumlaos
candidacy and declining to rule on the invalidity of the first part of Section 4 of
the questioned Law; and concurs with the pronouncement that the mere filing
of charges shall be prima facie cause for disqualification is void.
I. I dissent from the majority's dismissal of the petition insofar as it upholds the
discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52
which would impose a special disqualification on petitioner Patricio Dumlao
from running for the elective local office of governor of his home province of
Nueva Vizcaya and would in effect bar the electors of his province from
electing him to said office in the January 30 elections, simply because he is a
retired provincial governor of said province "who has received payment of the
retirement benefits to which he is entitled under the law and who shall have
been 65 years of age at the commencement of the term of office to which he
seeks to be elected."
To specially and peculiarly ban a 65-year old previously retired elective local
official from running for the sameelective office (of governor, in this case)
previously held by him and from which he has retired is arbitrary, oppressive
and unreasonable. Persons similarly situated are not similarly treated, e.g. a
retired vice-governor, mayor or councilor of 65 is entitled to run for governor
(because the disqualification is for the retiree of 65 to run for the
same elective office from which he retired) but petitioner is barred from doing
so (although he may run for any other lesser office). Both are 65 and are
retirees, yet one is barred from running for the office of governor. What is the
valid distinction? Is this not an arbitrary discrimination against petitioner who
has cause to that "the aforesaid provision was concocted and designed
precisely to frustrate any bid of petition to make a political comeback as
governor of Nueva Vizcaya 1 (since no other case by a former governor
similarly barred by virtue of said provision can never be cited 2 ). Is there not
here, therefore a gross denial of the cardinal constitutional guarantee that
equal protection and security shall be given under the law to every person,
under analogous if not Identical circumstances?
Respondent's claim, as accepted by the majority, is that the purpose of the
special disqualification is "to infuse new blood in local governments but the
classification (that would bar 65-year old retirees from running for the same
elective local office) is not rational nor reasonable. It is not germane nor
relevant to the alleged purpose of "infusing new blood" because such "old
blood" retirees may continue in local governments since they are not
disqualified at all to run for any other local elective office such as from
provincial governor, vice-governor, city, municipal or district mayor and vice-
mayor to member of the Sangguniang Panlalawigan Sangguniang Panglunsod
and Sangguniang Bayan, other than the local elective office from which they
retired.
Furthermore, other 65-year olds who have likewise retired from the judiciary
and other branches of government are not in any manner disqualified to run
for any local elective office, as in the case of retired Court of First Instance
Judge (former Congressman) Alberto S. Ubay who retired with full substantial
retirement benefits as such judge in 1978 at age 70 and now at past 71 years
of age, is running as the official KBL candidate for governor of his province.
And even in the case of 65-year old local elective officials, they are disqualified
only when they have received payment of the retirement benefits to which they
are entitled under the law (which amount to very little, compared to retirement
benefits of other executive officials and members of the judiciary). If they have
not received such retirement benefits, they are not disqualified. Certainly, their
disqualification or non-disqualification and consequent classification as "old
blood" or "new blood" cannot hinge on such an irrelevant question of whether
or not they have received their retirement benefits.
The classification is patently arbitrary and unreasonable and is not based on
substantial distinctions which make for real differences that would justify the
special disqualification of petitioner, which, it is claimed, "is based on a
presumption that elective local officials who have retired and are of advanced
age cannot discharge the functions of the office they seek as those who are
differently situated." 3 Such presumption is sheer conjecture. The mere fact
that a candidate is less than 65 or has "young or new blood" does not mean
that he would be more efficient, effective and competent than a mature 65year
old like petition er who has had experience on the job and who was observed
at the hearing to appear to be most physically fit. Sufice it to city the
outstanding case of the incumbent ebullient Minister of Foreign Affairs,
General Carlos P. Romulo, who was elected a 80 as a member of the Interim
Batasan Pambansa and who has just this month completed 81 years of age
and has been hailed by the President himself as "the best foreign minister the
Republic has ever had
Age has simply just never been a yardstick for qualification or
disqualification. Al. the most, a minimum age to hold public office has
been required as a qualification to insure a modicum of maturity 'now
reduced to 21 years in the present batas), but no maximum age has
ever been imposed as a disqualification for elect public office since the
right and win of the people to elect the candidate of their choice for
any elective office, no matter his age has always been recognized as
supreme.
The disqualification in question therefore is grossly violative of the equal
protection clause which mandates that all persons subjected to legislation shall
be treated alike, under like circumstances and conditions, both in the privileges
conferred and in the liabilities imposed. The guarantee is meant to proscribe
undue favor and individual or class privilege on the one hand and hostile
discrimination and the oppression of in quality on the other. The questioned
provision should therefore at the least be declared invalid in its application
insofar as it would disqualify petitioner from running for the office of governor
of his province.
As aptly restated by the Chief Justice, "Persons similarly situated should be
similarly treated. Where no valid distinction could be made as to the relevant
conditions that call for consideration, there should be none as to the privileges
conferred and the liabilities imposed. There can be no undue favoritism or
partiality on the one hand or hostility on the other. Arbitrary selection and
discrimination against persons in thus ruled out. For the principle is that equal
protection and security shall be given to every person under circumstances,
which if not Identical are analogous. If law be looked upon in terms of burden
or charges, those that full within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding on the rest." 4
Finally, this arbitrary disqualification is likewise grossly violative of Article XII,
sub-article C, section 9(1) of the 1973 Constitution that Bona fide candidates
for any public office shall be free from any form of harassment and
discrimination.
II. I concur with the majority's declaration of invalidity of the portion of the
second paragraph of Section 4 of Batas Pambansa Blg. 52 which would make
the mere filing of charges of subversion, insurrection, rebellion or other similar
crimes before a civil court or military tribunal after preliminary
investigation prima facie evidence of the fact of commission of an act of
disloyalty to the State on the part of the candidate and disqualify him from his
candidacy. Such a provision could be the most insidious weapon to disqualify
bona fide candidates who seem to be headed for election and places in the
hands of the military and civil prosecutors a dangerous and devastating
weapon of cutting off any candidate who may not be to their filing through the
filing of last-hour charges against him.
I also concur with the pronouncement made in the majority decision that in
order that a judgment of conviction may be deemed "as conclusive evidence"
of the candidate's disloyalty to the State and of his disqualification from office,
such judgment of conviction must be final and unappealable. This is so
specifically provided in Section 22 of the 1978 Election Code. 5 Otherwise, the
questioned provision would deny the bona fide candidate substantive due
process and would be grossly violative of his constitutional right of presumption
of innocence and of the above-quoted provision of the 1973 Constitution
protecting candidates for public office from any form of harassment and
discrimination.
ADDENDUM
When the case was voted upon a second time last January 21st, there
appeared to be a majority in favor of the declarations and pronouncements
above referred to in the two preceding paragraphs, in view of the urgency of
the matter and the evil sought to be avoided. However, as of this writing,
January 23, 1980 in the afternoon, such majority seems to have been
dissipated by the view that the action to nullify such second paragraph of
section 4 of the Batas in question is premature and has not been properly
submitted for ajudication under the strict procedural require . If this be the case,
my above views, termed as concurrences, should be taken as dissents against
the majority action.
G.R. No. L-5279 October 31, 1955
PHILIPPINE ASSOCIATION OF COLLEGES AND UNIVERSITIES, ETC.,
petitioner,
vs.
SECRETARY OF EDUCATION and the BOARD OF
TEXTBOOKS, respondents.
Manuel C. Briones, Vicente G. Sinco, Manuel V. Gallego and Enrique M.
Fernando for petitioner.
Office of the Solicitor General Pompeyo Diaz and Assistant Solicitor General
Francisco Carreon for respondents.
BENGZON, J.:
The petitioning colleges and universities request that Act No. 2706 as
amended by Act No. 3075 and Commonwealth Act No. 180 be declared
unconstitutional, because: A. They deprive owners of schools and colleges as
well as teachers and parents of liberty and property without due process of
law; B. They deprive parents of their natural rights and duty to rear their
children for civic efficiency; and C. Their provisions conferring on the Secretary
of Education unlimited power and discretion to prescribe rules and standards
constitute an unlawful delegation of legislative power.
A printed memorandum explaining their position in extenso is attached to the
record.
The Government's legal representative submitted a mimeographed
memorandum contending that, (1) the matter constitutes no justiciable
controversy exhibiting unavoidable necessity of deciding the constitutional
questions; (2) petitioners are in estoppel to challenge the validity of the said
acts; and (3) the Acts are constitutionally valid.
Petitioners submitted a lengthy reply to the above arguments.
Act No. 2706 approved in 1917 is entitled, "An Act making the inspection and
recognition of private schools and colleges obligatory for the Secretary of
Public Instruction." Under its provisions, the Department of Education has, for
the past 37 years, supervised and regulated all private schools in this country
apparently without audible protest, nay, with the general acquiescence of the
general public and the parties concerned.
It should be understandable, then, that this Court should be doubly reluctant
to consider petitioner's demand for avoidance of the law aforesaid, specially
where, as respondents assert, petitioners suffered no wrongnor allege
anyfrom the enforcement of the criticized statute.
It must be evident to any one that the power to declare a legislative
enactment void is one which the judge, conscious of the fallability of
the human judgment, will shrink from exercising in any case where he
can conscientiously and with due regard to duty and official oath
decline the responsibility. (Cooley Constitutional Limitations, 8th Ed.,
Vol. I, p. 332.)
When a law has been long treated as constitutional and important
rights have become dependent thereon, the Court may refuse to
consider an attack on its validity. (C. J. S. 16, p. 204.)
As a general rule, the constitutionality of a statute will be passed on
only if, and to the extent that, it is directly and necessarily involved in
a justiciable controversy and is essential to the protection of the rights
of the parties concerned. (16 C. J. S., p. 207.)
In support of their first proposition petitioners contend that the right of a citizen
to own and operate a school is guaranteed by the Constitution, and any law
requiring previous governmental approval or permit before such person could
exercise said right, amounts to censorship of previous restraint, a practice
abhorent to our system of law and government. Petitioners obviously refer to
section 3 of Act No. 2706 as amended which provides that before a private
school may be opened to the public it must first obtain a permit from the
Secretary of Education. The Solicitor General on the other hand points out that
none of the petitioners has cause to present this issue, because all of them
have permits to operate and are actually operating by virtue of their
permits.1 And they do not assert that the respondent Secretary of Education
has threatened to revoke their permits. They have suffered no wrong under
the terms of lawand, naturally need no relief in the form they now seek to
obtain.
It is an established principle that to entitle a private individual
immediately in danger of sustaining a direct injury as the result of that
action and it is not sufficient that he has merely a general to invoke
the judicial power to determine the validity of executive or legislative
action he must show that he has sustained or is interest common to
all members of the public. (Ex parte Levitt, 302 U. S. 633 82 L. Ed.
493.)
Courts will not pass upon the constitutionality of a law upon the
complaint of one who fails to show that he is injured by its operation.
(Tyler vs. Judges, 179 U. S. 405; Hendrick vs. Maryland, 235 U. S.
610; Coffmanvs. Breeze Corp., 323 U. S. 316-325.)
The power of courts to declare a law unconstitutional arises only when
the interests of litigant require the use of that judicial authority for their
protection against actual interference, a hypothetical threat being
insufficient. (United Public Works vs. Mitchell, 330 U .S. 75; 91 L. Ed.
754.)
Bona fide suit.Judicial power is limited to the decision of actual
cases and controversies. The authority to pass on the validity of
 statutes is incidental to the decision of such cases where conflicting
claims under the Constitution and under a legislative act assailed as
contrary to the Constitution are raised. It is legitimate only in the last
resort, and as necessity in the determination of real, earnest, and vital
controversy between litigants. (Taada and Fernando, Constitution of
the Philippines, p. 1138.)
Mere apprehension that the Secretary of Education might under the law
withdraw the permit of one of petitioners does not constitute a justiciable
controversy. (Cf. Com. ex rel Watkins vs. Winchester Waterworks (Ky.) 197 S.
W. 2d. 771.)
And action, like this, is brought for a positive purpose, nay, to obtain actual and
positive relief. (Salonga vs.Warner Barnes, L-2245, January, 1951.) Courts do
not sit to adjudicate mere academic questions to satisfy scholarly interest
therein, however intellectually solid the problem may be. This is specially true
where the issues "reach constitutional dimensions, for then there comes into
play regard for the court's duty to avoid decision of constitutional issues unless
avoidance becomes evasion." (Rice vs. Sioux City, U. S. Sup. Ct. Adv. Rep.,
May 23, 1995, Law Ed., Vol. 99, p. 511.)
The above notwithstanding, in view of the several decisions of the United
States Supreme Court quoted by petitioners, apparently outlawing censorship
of the kind objected to by them, we have decided to look into the matter, lest
they may allege we refuse to act even in the face of clear violation of
fundamental personal rights of liberty and property.
Petitioners complain that before opening a school the owner must secure a
permit from the Secretary of Education. Such requirement was not originally
included in Act No. 2706. It was introduced by Commonwealth Act No. 180
approved in 1936. Why?
In March 1924 the Philippine Legislature approved Act No. 3162 creating a
Board of Educational Survey to make a study and survey of education in the
Philippines and of all educational institutions, facilities and agencies thereof. A
Board chairmaned by Dr. Paul Munroe, Columbia University, assisted by a
staff of carefully selected technical members performed the task, made a five-
month thorough and impartial examination of the local educational system, and
submitted a report with recommendations, printed as a book of 671 pages.
The following paragraphs are taken from such report:
PRIVATE-ADVENTURE SCHOOLS
There is no law or regulation in the Philippine Islands today to prevent
a person, however disqualified by ignorance, greed, or even immoral
character, from opening a school to teach the young. It it true that in
order to post over the door "Recognized by the Government," a private
adventure school must first be inspected by the proper Government
official, but a refusal to grant such recognition does not by any means
result in such a school ceasing to exist. As a matter of fact, there are
more such unrecognized private schools than of the recognized
variety. How many, no one knows, as the Division of Private Schools
keeps records only of the recognized type.
Conclusion.An unprejudiced consideration of the fact presented
under the caption Private Adventure Schools leads but to one
conclusion, viz.: the great majority of them from primary grade to
university are money-making devices for the profit of those who
organize and administer them. The people whose children and youth
attend them are not getting what they pay for. It is obvious that the
system constitutes a great evil. That it should be permitted to exist with
almost no supervision is indefensible. The suggestion has been made
with the reference to the private institutions of university grade that
some board of control be organized under legislative control to
supervise their administration. The Commission believes that the
recommendations it offers at the end of this chapter are more likely to
bring about the needed reforms.
Recommendations.The Commission recommends that legislation
be enacted to prohibit the opening of any school by an individual or
organization without the permission of the Secretary of Public
Instruction. That before granting such permission the Secretary
assure himself that such school measures up to proper standards in
the following respects, and that the continued existence of the school
be dependent upon its continuing to conform to these conditions:
(1) The location and construction of the buildings, the lighting and
ventilation of the rooms, the nature of the lavatories, closets, water
supply, school furniture and apparatus, and methods of cleaning shall
be such as to insure hygienic conditions for both pupils and teachers.
(2) The library and laboratory facilities shall be adequate to the needs
of instruction in the subjects taught.
(3) The classes shall not show an excessive number of pupils per
teacher. The Commission recommends 40 as a maximum.
(4) The teachers shall meet qualifications equal to those of teachers
in the public schools of the same grade.
xxx xxx xxx
In view of these findings and recommendations, can there be any doubt that
the Government in the exercise of its police power to correct "a great evil"
could validly establish the "previous permit" system objected to by petitioners?
This is what differentiates our law from the other statutes declared invalid in
other jurisdictions. And if any doubt still exists, recourse may now be had to
the provision of our Constitution that "All educational institutions shall be under
the supervision and subject to regulation by the State." (Art. XIV, sec. 5.) The
power to regulate establishments or business occupations implies the power
to require a permit or license. (53 C. J. S. 4.)
What goes for the "previous permit" naturally goes for the power to revoke
such permit on account of violation of rules or regulations of the Department.
II. This brings us to the petitioners' third proposition that the questioned
statutes "conferring on the Secretary of Education unlimited power and
discretion to prescribe rules and standards constitute an unlawful delegation
of legislative power."
This attack is specifically aimed at section 1 of Act No. 2706 which, as
amended, provides:
It shall be the duty of the Secretary of Public Instruction to maintain a
general standard of efficiency in all private schools and colleges of the
Philippines so that the same shall furnish adequate instruction to the
public, in accordance with the class and grade of instruction given in
them, and for this purpose said Secretary or his duly authorized
representative shall have authority to advise, inspect, and regulate
said schools and colleges in order to determine the efficiency of
instruction given in the same,
"Nowhere in this Act" petitioners argue "can one find any description, either
general or specific, of what constitutes a 'general standard of efficiency.'
Nowhere in this Act is there any indication of any basis or condition to ascertain
what is 'adequate instruction to the public.' Nowhere in this Act is there any
statement of conditions, acts, or factors, which the Secretary of Education
must take into account to determine the 'efficiency of instruction.'"
The attack on this score is also extended to section 6 which provides:
The Department of Education shall from time to time prepare and
publish in pamphlet form the minimum standards required of primary,
intermediate, and high schools, and colleges granting the degrees of
Bachelor of Arts, Bachelor of Science, or any other academic degree.
It shall also from time to time prepare and publish in pamphlet form
the minimum standards required of law, medical, dental,
pharmaceutical, engineering, agricultural and other medical or
vocational schools or colleges giving instruction of a technical,
vocational or professional character.
Petitioners reason out, "this section leaves everything to the uncontrolled
discretion of the Secretary of Education or his department. The Secretary of
Education is given the power to fix the standard. In plain language, the statute
turns over to the Secretary of Education the exclusive authority of the
legislature to formulate standard. . . .."
It is quite clear the two sections empower and require the Secretary of
Education to prescribe rules fixing minimum standards of adequate and
efficient instruction to be observed by all such private schools and colleges as
may be permitted to operate. The petitioners contend that as the legislature
has not fixed the standards, "the provision is extremely vague, indefinite and
uncertain"and for that reason constitutionality objectionable. The best
answer is that despite such alleged vagueness the Secretary of Education has
fixed standards to ensure adequate and efficient instruction, as shown by the
memoranda fixing or revising curricula, the school calendars, entrance and
final examinations, admission and accreditation of students etc.; and the
system of private education has, in general, been satisfactorily in operation for
37 years. Which only shows that the Legislature did and could, validly rely
upon the educational experience and training of those in charge of the
Department of Education to ascertain and formulate minimum requirements of
adequate instruction as the basis of government recognition of any private
school.
At any rate, petitioners do not show how these standards have injured any of
them or interfered with their operation. Wherefore, no reason exists for them
to assail the validity of the power nor the exercise of the power by the Secretary
of Education.
True, the petitioners assert that, the Secretary has issued rules and regulations
"whimsical and capricious" and that such discretionary power has produced
arrogant inspectors who "bully heads and teachers of private schools."
Nevertheless, their remedy is to challenge those regulations specifically,
and/or to ring those inspectors to book, in proper administrative or judicial
proceedingsnot to invalidate the law. For it needs no argument, to show that
abuse by the officials entrusted with the execution of a statute does not per
se demonstrate the unconstitutionality of such statute.
Anyway, we find the defendants' position to be sufficiently sustained by the
decision in Alegra vs. Collector of Customs, 53 Phil., 394 upon holding the
statute that authorized the Director of Agriculture to "designate standards for
the commercial grades of abaca, maguey and sisal" against vigorous attacks
on the ground of invalid delegation of legislative power.
Indeed "adequate and efficient instruction" should be considered sufficient, in
the same way as "public welfare" "necessary in the interest of law and order"
"public interest" and "justice and equity and substantial merits of the case"
have been held sufficient as legislative standards justifying delegation of
authority to regulate. (See Taada and Fernando, Constitution of the
Philippines, p. 793, citing Philippine cases.)
On this phase of the litigation we conclude that there has been no undue
delegation of legislative power.
In this connection, and to support their position that the law and the Secretary
of Education have transcended the governmental power of supervision and
regulation, the petitioners appended a list of circulars and memoranda issued
by the said Department. However they failed to indicate which of such official
documents was constitutionally objectionable for being "capricious," or pain
"nuisance"; and it is one of our decisional practices that unless a constitutional
point is specifically raised, insisted upon and adequately argued, the court will
not consider it. (Santiago vs. Far Eastern, 73 Phil., 408.)
We are told that such list will give an idea of how the statute has placed in the
hands of the Secretary of Education complete control of the various activities
of private schools, and why the statute should be struck down as
unconstitutional. It is clear in our opinion that the statute does not in express
terms give the Secretary completecontrol. It gives him powers to inspect
private schools, to regulate their activities, to give them official permits to
operate under certain conditions, and to revoke such permits for cause. This
does not amount to completecontrol. If any of such Department circulars or
memoranda issued by the Secretary go beyond the bounds of regulation and
seeks to establish complete control, it would surely be invalid. Conceivably
some of them are of this nature, but besides not having before us the text of
such circulars, the petitioners have omitted to specify. In any event with the
recent approval of Republic Act No. 1124 creating the National Board of
Education, opportunity for administrative correction of the supposed anomalies
or encroachments is amply afforded herein petitioners. A more expeditious
and perhaps more technically competent forum exists, wherein to discuss the
necessity, convenience or relevancy of the measures criticized by them. (See
also Republic Act No. 176.)
If however the statutes in question actually give the Secretary control over
private schools, the question arises whether the power of supervision and
regulation granted to the State by section 5 Article XIV was meant to include
control of private educational institutions. It is enough to point out that local
educators and writers think the Constitution provides for control of Education
by the State. (See Tolentino, Government of the Philippine Constitution, Vol.
II, p. 615; Benitez, Philippine Social Life and Progress, p. 335.)
The Constitution (it) "provides for state control of all educational institutions"
even as it enumerates certain fundamental objectives of all education to wit,
the development of moral character, personal discipline, civic conscience and
vocational efficiency, and instruction in the duties of citizenship. (Malcolm &
Laurel, Philippine Constitutional Law, 1936.)
The Solicitor General cities many authorities to show that the power to regulate
means power to control, and quotes from the proceedings of the Constitutional
Convention to prove that State control of private education was intended by
the organic law. It is significant to note that the Constitution grants power to
supervise and to regulate. Which may mean greater power than mere
regulation.
III. Another grievance of petitionersprobably the most significantis the
assessment of 1 per cent levied on gross receipts of all private schools for
additional Government expenses in connection with their supervision and
regulation. The statute is section 11-A of Act No. 2706 as amended by
Republic Act No. 74 which reads as follows:
SEC. 11-A. The total annual expense of the Office of Private
Education shall be met by the regular amount appropriated in the
annual Appropriation Act: Provided, however, That for additional
expenses in the supervision and regulation of private schools,
colleges and universities and in the purchase of textbook to be sold to
student of said schools, colleges and universities and President of the
Philippines may authorize the Secretary of Instruction to levy an
equitable assessment from each private educational institution
equivalent to one percent of the total amount accruing from tuition and
other fees: . . . and non-payment of the assessment herein provided
by any private school, college or university shall be sufficient cause
for the cancellation by the Secretary of Instruction of the permit for
recognition granted to it.
Petitioners maintain that this is a tax on the exercise of a constitutional right
the right to open a school, the liberty to teach etc. They claim this is
unconstitutional, in the same way that taxes on the privilege of selling religious
literature or of publishing a newspaperboth constitutional privilegeshave
been held, in the United States, to be invalid as taxes on the exercise of a
constitutional right.
The Solicitor General on the other hand argues that insofar as petitioners'
action attempts to restrain the further collection of the assessment, courts have
no jurisdiction to restrain the collection of taxes by injunction, and in so far as
they seek to recover fees already paid the suit, it is one against the State
without its consent. Anyway he concludes, the action involving "the legality of
any tax impost or assessment" falls within the original jurisdiction of Courts of
First Instance.
There are good grounds in support of Government's position. If this levy of 1
per cent is truly a mere feeand not a taxto finance the cost of the
Department's duty and power to regulate and supervise private schools, the
exaction may be upheld; but such point involves investigation and examination
of relevant data, which should best be carried out in the lower courts. If on the
other hand it is a tax, petitioners' issue would still be within the original
jurisdiction of the Courts of First Instance.
The last grievance of petitioners relates to the validity of Republic Act No. 139
which in its section 1 provides:
The textbooks to be used in the private schools recognized or
authorized by the government shall be submitted to the Board (Board
of Textbooks) which shall have the power to prohibit the use of any of
said textbooks which it may find to be against the law or to offend the
dignity and honor of the government and people of the Philippines, or
which it may find to be against the general policies of the government,
or which it may deem pedagogically unsuitable.
This power of the Board, petitioners aver, is censorship in "its baldest form".
They cite two U. S. cases (Miss. and Minnesota) outlawing statutes that
impose previous restraints upon publication of newspapers, or curtail the right
of individuals to disseminate teachings critical of government institutions or
policies.
Herein lies another important issue submitted in the cause. The question is
really whether the law may be enacted in the exercise of the State's
constitutional power (Art. XIV, sec. 5) to supervise and regulate private
schools. If that power amounts to control of private schools, as some think it
is, maybe the law is valid. In this connection we do not share the belief that
section 5 has added new power to what the State inherently possesses by
virtue of the police power. An express power is necessarily more extensive
than a mere implied power. For instance, if there is conflict between an express
individual right and the express power to control private education it cannot
off-hand be said that the latter must yield to the formerconflict of two express
powers. But if the power to control education is merely implied from the police
power, it is feasible to uphold the express individual right, as was probably the
situation in the two decisions brought to our attention, of Mississippi and
Minnesota, states where constitutional control of private schools is not
expressly produced.
However, as herein previously noted, no justiciable controversy has been
presented to us. We are not informed that the Board on Textbooks has
prohibited this or that text, or that the petitioners refused or intend to refuse to
submit some textbooks, and are in danger of losing substantial privileges or
rights for so refusing.
The average lawyer who reads the above quoted section of Republic Act 139
will fail to perceive anything objectionable. Why should not the State prohibit
the use of textbooks that are illegal, or offensive to the Filipinos or adverse to
governmental policies or educationally improper? What's the power of
regulation and supervision for? But those trained to the investigation of
constitutional issues are likely to apprehend the danger to civil liberties, of
possible educational dictatorship or thought control, as petitioners' counsel
foresee with obvious alarm. Much depends, however, upon the execution and
implementation of the statute. Not that constitutionality depends necessarily
upon the law's effects. But if the Board on Textbooks in its actuations strictly
adheres to the letter of the section and wisely steers a middle course between
the Scylla of "dictatorship" and the Charybdis of "thought control", no cause
for complaint will arise and no occasion for judicial review will develop.
Anyway, and again, petitioners now have a more expeditious remedy thru an
administrative appeal to the National Board of Education created by Republic
Act 1124.
Of course it is necessary to assure herein petitioners, that when and if, the
dangers they apprehend materialize and judicial intervention is suitably
invoked, after all administrative remedies are exhausted, the courts will not
shrink from their duty to delimit constitutional boundaries and protect individual
liberties.
IV. For all the foregoing considerations, reserving to the petitioners the right to
institute in the proper court, and at the proper time, such actions as may call
for decision of the issue herein presented by them, this petition for prohibition
will be denied. So ordered.
Paras, C. J., Padilla, Montemayor, Reyes, A., and Jugo, JJ., concur.

G.R. No. L-33517 March 29, 1974
PHILIPPINE CONSTITUTION ASSOCIATION, SALVADOR ARANETA,
JUAN V. BORRA, JOSE NUGUID, JOSE NOLLEDO, and RAMON A.
GONZALES, petitioners,
vs.
HON. CORNELIO T. VILLAREAL, in his capacity as Speaker of the
House of Representatives, Manila, CHIEF ACCOUNTANT, House of
Representatives, Manila, and AUDITOR, House of Representatives,
Manila, respondents.
Ramon A. Gonzales for petitioners.
Ramon C. Aquino for respondent.
FERNANDO, J.:p
Petitioner Philippine Constitution Association, joined by other petitioners, 1 all
delegates to the 1971 Constitutional Convention, suing in their capacity as
such as well as citizens and taxpayers, filed this mandamus proceeding on
May 15, 1971 praying that a writ be issued ordering respondents Cornelio T.
Villareal, in his capacity as Speaker of the then House of Representatives, the
Chief Accountant thereof, as well as its Auditor, to inspect and examine the
books, records, vouchers and other supporting papers of the House of
Representatives that have relevance to the alleged transfer of P26.2 million
from various executive offices to the House of Representatives as well as its
books, records, vouchers and other supporting papers dealing with the original
outlay of the P39 million as appropriated for the 1969-1970 fiscal year. On May
19, 1971, this Court adopted a resolution of the following tenor: "The
respondents are hereby required to file an answer to the petition for mandamus
within 10 days from notice hereof, and not to move to dismiss the
petition." 2 There was, on June 16, 1971, an answer and motion to dismiss on
behalf of respondents seeking the dismissal of the suit on the ground of lack
of jurisdiction under the theory of separation of powers, absence of a cause of
action, lack of legal personality to sue, nonjoinder of indispensable parties as
well as the mischievous consequences to which a suit of such character would
give rise. Subsequently, there was a reply by petitioners on June 26, 1971 and
a rejoinder by respondents on June 28, 1971. There was even a surrejoinder
by respondents on July 6 of the same year, as well as a reply thereto on the
very same day. Then came the hearing on August 4, 1971.
There is no need, however, to pass on the merits of the various legal issues
raised as in accordance with the ruling in Philippine Constitution Association,
Inc. v. Gimenez, 3 promulgated on February 28, 1974, a suit of this character
has become moot and academic with the effectivity of the present Constitution
and the consequent abolition of the House of Representatives. It may not be
amiss to quote this excerpt from the resolution declaring moot and academic
the above case against Auditor General Gimenez: "Parenthetically, it is to be
observed that such difficulty need not attend a petition of this character if filed
now in view of the specific provision in the present Constitution: 'The records
and books of accounts of the National Assembly shall be open to the public in
accordance with law, and such books shall be audited by the Commission on
Audit which shall publish annually the itemized expenditures for each Member.'
"4
WHEREFORE, the above petition is declared moot and academic.
Zaldivar (Chairman), Barredo, Antonio and Fernandez, JJ., concur.
Aquino, J., took no part.
G.R. No. L-34150 October 16, 1971
ARTURO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE
AUDITOR, and THE DISBURSING OFFICER OF THE 1971
CONSTITUTIONAL CONVENTION, respondents, RAUL S. MANGLAPUS,
JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA,
MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA,
VICTOR F. ORTEGA, and JUAN V. BORRA, Intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971
Constitutional Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent
Disbursing Officer of the 1971 Constitutional Convention.
Intervenors in their own behalf.
BARREDO, J.:
Petition for prohibition principally to restrain the respondent Commission on
Elections "from undertaking to hold a plebiscite on November 8, 1971," at
which the proposed constitutional amendment "reducing the voting age" in
Section 1 of Article V of the Constitution of the Philippines to eighteen years
"shall be, submitted" for ratification by the people pursuant to Organic
Resolution No. 1 of the Constitutional Convention of 1971, and the subsequent
implementing resolutions, by declaring said resolutions to be without the force
and effect of law in so far as they direct the holding of such plebiscite and by
also declaring the acts of the respondent Commission (COMELEC) performed
and to be done by it in obedience to the aforesaid Convention resolutions to
be null and void, for being violative of the Constitution of the Philippines.
As a preliminary step, since the petition named as respondent only the
COMELEC, the Count required that copies thereof be served on the Solicitor
General and the Constitutional Convention, through its President, for such
action as they may deem proper to take. In due time, respondent COMELEC
filed its answer joining issues with petitioner. To further put things in proper
order, and considering that the fiscal officers of the Convention are
indispensable parties in a proceeding of this nature, since the acts sought to
be enjoined involve the expenditure of funds appropriated by law for the
Convention, the Court also ordered that the Disbursing Officer, Chief
Accountant and Auditor of the Convention be made respondents. After the
petition was so amended, the first appeared thru Senator Emmanuel Pelaez
and the last two thru Delegate Ramon Gonzales. All said respondents, thru
counsel, resist petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of arguments
and even possible confusion, and considering that with the principal parties
being duly represented by able counsel, their interests would be adequately
protected already, the Court had to limit the number of intervenors from the
ranks of the delegates to the Convention who, more or less, have legal interest
in the success of the respondents, and so, only Delegates Raul S. Manglapus,
Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan,
Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B. Borra, all
distinguished lawyers in their own right, have been allowed to intervene jointly.
The Court feels that with such an array of brilliant and dedicated counsel, all
interests involved should be duly and amply represented and protected. At any
rate, notwithstanding that their corresponding motions for leave to intervene or
to appear as amicus curiae 1 have been denied, the pleadings filed by the
other delegates and some private parties, the latter in representation of their
minor children allegedly to be affected by the result of this case with the
records and the Court acknowledges that they have not been without value as
materials in the extensive study that has been undertaken in this case.
The background facts are beyond dispute. The Constitutional Convention of
1971 came into being by virtue of two resolutions of the Congress of the
Philippines approved in its capacity as a constituent assembly convened for
the purpose of calling a convention to propose amendments to the Constitution
namely, Resolutions 2 and 4 of the joint sessions of Congress held on March
16, 1967 and June 17, 1969 respectively. The delegates to the said
Convention were all elected under and by virtue of said resolutions and the
implementing legislation thereof, Republic Act 6132. The pertinent portions of
Resolution No 2 read as follows:
SECTION 1. There is hereby called a convention to propose
amendments to the Constitution of the Philippines, to be composed of
two elective Delegates from each representative district who shall
have the same qualifications as those required of Members of the
House of Representatives.
xxx xxx xxx
SECTION 7. The amendments proposed by the Convention shall be
valid and considered part of the Constitution when approved by a
majority of the votes cast in an election at which they are submitted to
the people for their ratification pursuant to Article XV of the
Constitution.
Resolution No. 4 merely modified the number of delegates to represent the
different cities and provinces fixed originally in Resolution No 2.
After the election of the delegates held on November 10, 1970, the Convention
held its inaugural session on June 1, 1971. Its preliminary labors of election of
officers, organization of committees and other preparatory works over, as its
first formal proposal to amend the Constitution, its session which began on
September 27, 1971, or more accurately, at about 3:30 in the morning of
September 28, 1971, the Convention approved Organic Resolution No. 1
reading thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF
THE CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER
THE VOTING AGE TO 18
BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional
Convention:
Section 1. Section One of Article V of the Constitution of the
Philippines is amended to as follows:
Section 1. Suffrage may be exercised by (male)
citizens of the Philippines not otherwise disqualified
by law, who are (twenty-one) EIGHTEEN years or
over and are able to read and write, and who shall
have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least
six months preceding the election.
Section 2. This amendment shall be valid as part of the Constitution
of the Philippines when approved by a majority of the votes cast in a
plebiscite to coincide with the local elections in November 1971.
Section 3. This partial amendment, which refers only to the age
qualification for the exercise of suffrage shall be without prejudice to
other amendments that will be proposed in the future by the 1971
Constitutional Convention on other portions of the amended Section
or on other portions of the entire Constitution.
Section 4. The Convention hereby authorizes the use of the sum of
P75,000.00 from its savings or from its unexpended funds for the
expense of the advanced plebiscite; provided, however that should
there be no savings or unexpended sums, the Delegates waive
P250.00 each or the equivalent of 2-1/2 days per diem.
By a letter dated September 28, 1971, President Diosdado Macapagal, called
upon respondent Comelec "to help the Convention implement (the above)
resolution." The said letter reads:
September 28, 1971
The Commission on Elections Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed Resolution No. 1
quoted as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic Act No. 6132
otherwise known as the Constitutional Convention Act of 1971, may
we call upon you to help the Convention implement this resolution:
Sincerely,
( e
S s
g i
d d
. e
) n
D t
I
O On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional
S Convention that it will hold the plebiscite on condition that:
D
A
(a) The Constitutional Convention will undertake the printing of
D
separate official ballots, election returns and tally sheets for the use of
O said plebiscite at its expense;
P
.
M (b) The Constitutional Convention will adopt its own security measures
A for the printing and shipment of said ballots and election forms; and
C
A (c) Said official ballots and election forms will be delivered to the
P Commission in time so that they could be distributed at the same time
A that the Commission will distribute its official and sample ballots to be
G used in the elections on November 8, 1971.
A
L What happened afterwards may best be stated by quoting from intervenors'
D Governors' statement of the genesis of the above proposal:
I
O The President of the Convention also issued an order forming an Ad
S Hoc Committee to implement the Resolution.
D
A
This Committee issued implementing guidelines which were approved
D
by the President who then transmitted them to the Commission on
O
Elections.
P
.
M The Committee on Plebiscite and Ratification filed a report on the
A progress of the implementation of the plebiscite in the afternoon of
C October 7,1971, enclosing copies of the order, resolution and letters
A of transmittal above referred to (Copy of the report is hereto attached
P as Annex 8-Memorandum).
A
G RECESS RESOLUTION
A
L In its plenary session in the evening of October 7, 1971, the
P Convention approved a resolution authored by Delegate Antonio
r Olmedo of Davao Oriental, calling for a recess of the Convention from
 November 1, 1971 to November 9, 1971 to permit the delegates to
campaign for the ratification of Organic Resolution No. 1. (Copies of
the resolution and the transcript of debate thereon are hereto attached
as Annexes 9 and 9-A Memorandum, respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed Resolution No. 24
submitted by Delegate Jose Ozamiz confirming the authority of the
President of the Convention to implement Organic Resolution No. 1,
including the creation of the Ad Hoc Committee ratifying all acts
performed in connection with said implementation.
Upon these facts, the main thrust of the petition is that Organic Resolution No.
1 and the other implementing resolutions thereof subsequently approved by
the Convention have no force and effect as laws in so far as they provide for
the holding of a plebiscite co-incident with the elections of eight senators and
all city, provincial and municipal officials to be held on November 8, 1971,
hence all of Comelec's acts in obedience thereof and tending to carry out the
holding of the plebiscite directed by said resolutions are null and void, on the
ground that the calling and holding of such a plebiscite is, by the Constitution,
a power lodged exclusively in Congress, as a legislative body, and may not be
exercised by the Convention, and that, under Section 1, Article XV of the
Constitution, the proposed amendment in question cannot be presented to the
people for ratification separately from each and all of the other amendments
to be drafted and proposed by the Convention. On the other hand, respondents
and intervenors posit that the power to provide for, fix the date and lay down
the details of the plebiscite for the ratification of any amendment the
Convention may deem proper to propose is within the authority of the
Convention as a necessary consequence and part of its power to propose
amendments and that this power includes that of submitting such amendments
either individually or jointly at such time and manner as the Convention may
direct in discretion. The Court's delicate task now is to decide which of these
two poses is really in accord with the letter and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of
jurisdiction. They contend that the issue before Us is a political question and
that the Convention being legislative body of the highest order is sovereign,
and as such, its acts impugned by petitioner are beyond the control of the
Congress and the courts. In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In fact, respondents Chief
Accountant and Auditor of the convention expressly concede the jurisdiction
of this Court in their answer acknowledging that the issue herein is a justifiable
one.
Strangely, intervenors cite in support of this contention portions of the decision
of this Court in the case of Gonzales v. Comelec, 21 SCRA 774, wherein the
members of the Court, despite their being divided in their opinions as to the
other matters therein involved, were precisely unanimous in upholding its
jurisdiction. Obviously, distinguished counsel have either failed to grasp the
full impact of the portions of Our decision they have quoted or would misapply
them by taking them out of context.
There should be no more doubt as to the position of this Court regarding its
jurisdiction vis-a-vis the constitutionality of the acts of the Congress, acting as
a constituent assembly, and, for that matter, those of a constitutional
convention called for the purpose of proposing amendments to the
Constitution, which concededly is at par with the former. A simple reading of
Our ruling in that very case of Gonzales relied upon by intervenors should
dispel any lingering misgivings as regards that point. Succinctly but
comprehensively, Chief Justice Concepcion held for the Court thus: .
As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this
Court speaking through one of the leading members of the
Constitutional Convention and a respected professor of Constitutional
Law, Dr. Jose P. Laurel declared that "the judicial department is the
only constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and
among the integral or constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra), this Court
characterizing the issue submitted thereto as a political one declined
to pass upon the question whether or not a given number of votes cast
in Congress in favor of a proposed amendment to the Constitution
which was being submitted to the people for ratification satisfied the
three-fourths vote requirement of the fundamental law. The force of
this precedent has been weakened, however, by Suanes v. Chief
Accountant of the Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851,
March 4 & 14, 1949), Taada v. Cuenco, (L-10520, Feb. 28, 1957)
and Macias v. Commission on Elections, (L-18684, Sept. 14, 1961).
In the first we held that the officers and employees of the Senate
Electoral Tribunal are under its supervision and control, not of that of
the Senate President, as claimed by the latter; in the second, this
Court proceeded to determine the number of Senators necessary
for quorum in the Senate; in the third, we nullified the election, by
Senators belonging to the party having the largest number of votes in
said chamber, purporting to act, on behalf of the party having the
second largest number of votes therein of two (2) Senators belonging
to the first party, as members, for the second party, of the Senate
Electoral Tribunal; and in the fourth, we declared unconstitutional an
act of Congress purporting to apportion the representatives districts
for the House of Representatives, upon the ground that the
apportionment had not been made as may be possible according to
the number of inhabitants of each province. Thus we rejected the
theory, advanced in these four (4) cases that the issues therein raised
were political questions the determination of which is beyond judicial
review.
Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative
powers to Congress (Section 1, Art. VI, Constitution of the
Philippines). It is part of the inherent powers of the people as the
repository sovereignty in a republican state, such as ours (Section 1,
Art. 11, Constitution of the Philippines) to make, and, hence, to
amend their own Fundamental Law. Congress may propose
amendments to the Constitution merely because the same explicitly
grants such power. (Section 1, Art. XV, Constitution of the Philippines)
Hence, when exercising the same, it is said that Senators and
members of the House of Representatives act, not as members of
Congress, but as component elements of aconstituent assembly.
When acting as such, the members of Congress derive their authority
from the Constitution, unlike the people, when performing the same
function, (Of amending the Constitution) for their authority
does not emanate from the Constitution they are the very source of
all powers of government including the Constitution itself.
Since, when proposing, as a constituent assembly, amendments to
the Constitution, the members of Congress derive their authority from
the Fundamental Law, it follows, necessarily, that they do not have the
final say on whether or not their acts are within or beyond
constitutional limits. Otherwise, they could brush aside and set the
same at naught, contrary to the basic tenet that ours is a government
of laws, not of men, and to the rigid nature of our Constitution. Such
rigidity is stressed by the fact that the Constitution expressly confers
upon the Supreme Court, (And, inferentially, to lower courts.) the
power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political character of treaty-
making power.
In short, the issue whether or not a Resolution of Congress acting
as a constituent assembly violates the Constitution is essentially
justiciable not political, and, hence, subject to judicial review, and, to
the extent that this view may be inconsistent with the stand taken
in Mabanag v. Lopez Vito, (supra) the latter should be deemed
modified accordingly. The Members of the Court are unanimous on
this point.
No one can rightly claim that within the domain of its legitimate authority, the
Convention is not supreme. Nowhere in his petition and in his oral argument
and memoranda does petitioner point otherwise. Actually, what respondents
and intervenors are seemingly reluctant to admit is that the Constitutional
Convention of 1971, as any other convention of the same nature, owes its
existence and derives all its authority and power from the existing Constitution
of the Philippines. This Convention has not been called by the people directly
as in the case of a revolutionary convention which drafts the first Constitution
of an entirely new government born of either a war of liberation from a mother
country or of a revolution against an existing government or of a bloodless
seizure of power a la coup d'etat. As to such kind of conventions, it is
absolutely true that the convention is completely without restrain and
omnipotent all wise, and it is as to such conventions that the remarks of
Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by
Senator Pelaez refer. No amount of rationalization can belie the fact that the
current convention came into being only because it was called by a resolution
of a joint session of Congress acting as a constituent assembly by authority of
Section 1, Article XV of the present Constitution which provides:
ARTICLE XV AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a vote of
three-fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to this
Constitution or call a convention for the purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are
submitted to the people for their ratification.
True it is that once convened, this Convention became endowed with extra
ordinary powers generally beyond the control of any department of the existing
government, but the compass of such powers can be co-extensive only with
the purpose for which the convention was called and as it may propose cannot
have any effect as part of the Constitution until the same are duly ratified by
the people, it necessarily follows that the acts of convention, its officers and
members are not immune from attack on constitutional grounds. The present
Constitution is in full force and effect in its entirety and in everyone of its parts
the existence of the Convention notwithstanding, and operates even within the
walls of that assembly. While it is indubitable that in its internal operation and
the performance of its task to propose amendments to the Constitution it is not
subject to any degree of restraint or control by any other authority than itself,
it is equally beyond cavil that neither the Convention nor any of its officers or
members can rightfully deprive any person of life, liberty or property without
due process of law, deny to anyone in this country the equal protection of the
laws or the freedom of speech and of the press in disregard of the Bill of Rights
of the existing Constitution. Nor, for that matter, can such Convention validly
pass any resolution providing for the taking of private property without just
compensation or for the imposition or exacting of any tax, impost or
assessment, or declare war or call the Congress to a special session, suspend
the privilege of the writ of habeas corpus, pardon a convict or render judgment
in a controversy between private individuals or between such individuals and
the state, in violation of the distribution of powers in the Constitution.
It being manifest that there are powers which the Convention may not and
cannot validly assert, much less exercise, in the light of the existing
Constitution, the simple question arises, should an act of the Convention be
assailed by a citizen as being among those not granted to or inherent in it,
according to the existing Constitution, who can decide whether such a
contention is correct or not? It is of the very essence of the rule of law that
somehow somewhere the Power and duty to resolve such a grave
constitutional question must be lodged on some authority, or we would have
to confess that the integrated system of government established by our
founding fathers contains a wide vacuum no intelligent man could ignore,
which is naturally unworthy of their learning, experience and craftsmanship in
constitution-making.
We need not go far in search for the answer to the query We have posed. The
very decision of Chief Justice Concepcion in Gonzales, so much invoked by
intervenors, reiterates and reinforces the irrefutable logic and wealth of
principle in the opinion written for a unanimous Court by Justice Laurel in
Angara vs. Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and
in bold lines, allotment of power to the executive, the legislative and
the judicial departments of the government. The overlapping and
interlacing of functions and duties between the several departments,
however, sometimes makes it hard to say where the one leaves off
and the other begins. In times of social disquietude or political
excitement, the great landmark of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can be called
upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.
As any human production our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the power of
our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however
limited, has established a republican government intended to operate
and function as a harmonious whole, under a system of check and
balances and subject to specific limitations and restrictions provided
in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be
mere verbiage, the bill of rights mere expressions of sentiment and the
principles of good government mere political apothegms. Certainly the
limitations and restrictions embodied in our Constitution are real as
they should be in any living Constitution. In the United States where
no express constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by
popular acquiescence for a period of more than one and half centuries.
In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of Article VIII of our Constitution.
The Constitution is a definition of the powers or government. Who is
to determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the judiciary
as the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed
"judicial supremacy" which properly is the power of judicial review
under the Constitution. Even then, this power of judicial review is
limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any
attempt at abstraction could only lead to dialectics and barren legal
questions and to strike conclusions unrelated to actualities. Narrowed
as its functions is in this manner the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than
that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by
the Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of
the people as expressed through their representatives in the executive
and legislative departments of the government.
But much as we might postulate on the internal checks of power
provided in our Constitution, it ought not the less to be remembered
that, in the language of James Madison, the system itself is not "the
chief palladium of constitutional liberty ... the people who are authors
of this blessing must also be its guardians ... their eyes must be ever
ready to mark, their voices to pronounce ... aggression on the authority
of their Constitution." In the last and ultimate analysis then, must the
success of our government in the unfolding years to come be tested
in the crucible of Filipino minds and hearts than in consultation rooms
and court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of
December 3, 1935, confirmed the election of the herein petitioner to
the said body. On the other hand, the Electoral Commission has by
resolution adopted on December 9, 1935, fixed said date as the last
day for the filing of protests against the election, returns and
qualifications of members of the National Assembly; notwithstanding
the previous confirmations made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the
National Assembly has the effect of cutting off the power of the
Electoral Commission to entertain protests against the election,
returns and qualifications of members of the National Assembly,
submitted after December 3, 1935 then the resolution of the Electoral
Commission of December 9, 1935, is mere surplusage and had no
effect. But, if, as contended by the respondents, the Electoral
Commission has the sole power of regulating its proceedings to the
exclusion of the National Assembly, then the resolution of December
9, 1935, by which the Electoral Commission fixed said date as the last
day for filing protests against the election, returns and qualifications of
members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a
conflict of a grave constitutional nature between the National
Assembly on the one hand and the Electoral Commission on the other.
From the very nature of the republican government established in our
country in the light of American experience and of our own, upon the
judicial department is thrown the solemn and inescapable obligation
of interpreting the Constitution and defining constitutional boundaries.
The Electoral Commission as we shall have occasion to refer
hereafter, is a constitutional organ, created for a specific purpose,
namely, to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the
Electoral Commission may not be interfered with, when and while
acting within the limits of its authority, it does not follow that it is beyond
the reach of the constitutional mechanism adopted by the people and
that it is not subject to constitutional restriction. The Electoral
Commission is not a separate department of the government, and
even if it were, conflicting claims of authority under the fundamental
law between departmental powers and agencies of the government
are necessarily determined by the judiciary in justiciable and
appropriate cases. Discarding the English type and other European
types of constitutional government, the framers of our Constitution
adopted the American type where the written constitution is
interpreted and given effect by the judicial department. In some
countries which have declined to follow the American example,
provisions have been inserted in their constitutions prohibiting the
courts from exercising the power to interpret the fundamental law. This
is taken as a recognition of what otherwise would be the rule that in
the absence of direct prohibition, courts are bound to assume what is
logically their function. For instance, the Constitution of Poland of 1921
expressly provides that courts shall have no power to examine the
validity of statutes (art. 81, Chap. IV). The former Austrian Constitution
contained a similar declaration. In countries whose constitution are
silent in this respect, courts have assumed this power. This is true in
Norway, Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional
Charter of the Czechoslavak, Republic, February 29, 1920) and Spain
(arts. 121-123, Title IX, Constitution of the Republic of 1931) especial
constitutional courts are established to pass upon the validity of
ordinary laws. In our case, the nature of the present controversy
shows the necessity of a final constitutional arbiter to determine the
conflict of authority between two agencies created by the Constitution.
Were we to decline to take cognizance of the controversy, who will
determine the conflict? And if the conflict were left undecided and
undetermined, would not a void be thus created in our constitutional
system which may in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum
abhorret, so must we avoid exhaustion in our constitutional system.
Upon principle, reason, and authority, we are clearly of the opinion
that upon the admitted facts of the present case, this court has
jurisdiction over the Electoral Commission and the subject matter of
the present controversy for the purpose of determining the character,
scope and extent of the constitutional grant to the Electoral
Commission as "the sole judge of all contests relating to the election,
returns and qualifications of the members of the National Assembly."
.
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did
in Angara, these postulates just quoted do not apply only to conflicts of
authority between the three existing regular departments of the government
but to all such conflicts between and among these departments, or, between
any of them, on the one hand, and any other constitutionally created
independent body, like the electoral tribunals in Congress, the Comelec and
the Constituent assemblies constituted by the House of Congress, on the
other. We see no reason of logic or principle whatsoever, and none has been
convincingly shown to Us by any of the respondents and intervenors, why the
same ruling should not apply to the present Convention, even if it is an
assembly of delegate elected directly by the people, since at best, as already
demonstrated, it has been convened by authority of and under the terms of the
present Constitution..
Accordingly, We are left with no alternative but to uphold the jurisdiction of the
Court over the present case. It goes without saying that We do this not
because the Court is superior to the Convention or that the Convention is
subject to the control of the Court, but simply because both the Convention
and the Court are subject to the Constitution and the rule of law, and "upon
principle, reason and authority," per Justice Laurel, supra, it is within the power
as it is the solemn duty of the Court, under the existing Constitution to resolve
the issues in which petitioner, respondents and intervenors have joined in this
case.
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is
it within the powers of the Constitutional Convention of 1971 to order, on its
own fiat, the holding of a plebiscite for the ratification of the proposed
amendment reducing to eighteen years the age for the exercise of suffrage
under Section 1 of Article V of the Constitution proposed in the Convention's
Organic Resolution No. 1 in the manner and form provided for in said
resolution and the subsequent implementing acts and resolution of the
Convention?
At the threshold, the environmental circumstances of this case demand the
most accurate and unequivocal statement of the real issue which the Court is
called upon to resolve. Petitioner has very clearly stated that he is not against
the constitutional extension of the right of suffrage to the eighteen-year-olds,
as a matter of fact, he has advocated or sponsored in Congress such a
proposal, and that, in truth, the herein petition is not intended by him to prevent
that the proposed amendment here involved be submitted to the people for
ratification, his only purpose in filing the petition being to comply with his sworn
duty to prevent, Whenever he can, any violation of the Constitution of the
Philippines even if it is committed in the course of or in connection with the
most laudable undertaking. Indeed, as the Court sees it, the specific question
raised in this case is limited solely and only to the point of whether or not it is
within the power of the Convention to call for a plebiscite for the ratification by
the people of the constitutional amendment proposed in the abovequoted
Organic Resolution No. 1, in the manner and form provided in said resolution
as well as in the subject question implementing actions and resolution of the
Convention and its officers, at this juncture of its proceedings, when as it is a
matter of common knowledge and judicial notice, it is not set to adjourn sine
die, and is, in fact, still in the preliminary stages of considering other reforms
or amendments affecting other parts of the existing Constitution; and, indeed,
Organic Resolution No. 1 itself expressly provides, that the amendment therein
proposed "shall be without prejudice to other amendments that will be
proposed in the future by the 1971 Constitutional Convention on other portions
of the amended section or on other portions of the entire Constitution." In other
words, nothing that the Court may say or do, in this case should be understood
as reflecting, in any degree or means the individual or collective stand of the
members of the Court on the fundamental issue of whether or not the eighteen-
year-olds should be allowed to vote, simply because that issue is not before
Us now. There should be no doubt in the mind of anyone that, once the Court
finds it constitutionally permissible, it will not hesitate to do its part so that the
said proposed amendment may be presented to the people for their approval
or rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm
of the youth have not blinded them to the absolute necessity, under the
fundamental principles of democracy to which the Filipino people is committed,
of adhering always to the rule of law. Surely, their idealism, sincerity and purity
of purpose cannot permit any other line of conduct or approach in respect of
the problem before Us. The Constitutional Convention of 1971 itself was born,
in a great measure, because of the pressure brought to bear upon the
Congress of the Philippines by various elements of the people, the youth in
particular, in their incessant search for a peaceful and orderly means of
bringing about meaningful changes in the structure and bases of the existing
social and governmental institutions, including the provisions of the
fundamental law related to the well-being and economic security of the
underprivileged classes of our people as well as those concerning the
preservation and protection of our natural resources and the national
patrimony, as an alternative to violent and chaotic ways of achieving such lofty
ideals. In brief, leaving aside the excesses of enthusiasm which at times have
justifiably or unjustifiably marred the demonstrations in the streets, plazas and
campuses, the youth of the Philippines, in general, like the rest of the people,
do not want confusion and disorder, anarchy and violence; what they really
want are law and order, peace and orderliness, even in the pursuit of what
they strongly and urgently feel must be done to change the present order of
things in this Republic of ours. It would be tragic and contrary to the plain
compulsion of these perspectives, if the Court were to allow itself in deciding
this case to be carried astray by considerations other than the imperatives of
the rule of law and of the applicable provisions of the Constitution. Needless
to say, in a larger measure than when it binds other departments of the
government or any other official or entity, the Constitution imposes upon the
Court the sacred duty to give meaning and vigor to the Constitution, by
interpreting and construing its provisions in appropriate cases with the proper
parties, and by striking down any act violative thereof. Here, as in all other
cases, We are resolved to discharge that duty.
During these twice when most anyone feels very strongly the urgent need for
constitutional reforms, to the point of being convinced that meaningful change
is the only alternative to a violent revolution, this Court would be the last to put
any obstruction or impediment to the work of the Constitutional Convention. If
there are respectable sectors opining that it has not been called to supplant
the existing Constitution in its entirety, since its enabling provision, Article XV,
from which the Convention itself draws life expressly speaks only of
amendments which shall form part of it, which opinion is not without persuasive
force both in principle and in logic, the seemingly prevailing view is that only
the collective judgment of its members as to what is warranted by the present
condition of things, as they see it, can limit the extent of the constitutional
innovations the Convention may propose, hence the complete substitution of
the existing constitution is not beyond the ambit of the Convention's authority.
Desirable as it may be to resolve, this grave divergence of views, the Court
does not consider this case to be properly the one in which it should discharge
its constitutional duty in such premises. The issues raised by petitioner, even
those among them in which respondents and intervenors have joined in an
apparent wish to have them squarely passed upon by the Court do not
necessarily impose upon Us the imperative obligation to express Our views
thereon. The Court considers it to be of the utmost importance that the
Convention should be untrammelled and unrestrained in the performance of
its constitutionally as signed mission in the manner and form it may conceive
best, and so the Court may step in to clear up doubts as to the boundaries set
down by the Constitution only when and to the specific extent only that it would
be necessary to do so to avoid a constitutional crisis or a clearly demonstrable
violation of the existing Charter. Withal, it is a very familiar principle of
constitutional law that constitutional questions are to be resolved by the
Supreme Court only when there is no alternative but to do it, and this rule is
founded precisely on the principle of respect that the Court must accord to the
acts of the other coordinate departments of the government, and certainly, the
Constitutional Convention stands almost in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have already made it clear
that the Convention came into being by a call of a joint session of Congress
pursuant to Section I of Article XV of the Constitution, already quoted earlier
in this opinion. We reiterate also that as to matters not related to its internal
operation and the performance of its assigned mission to propose
amendments to the Constitution, the Convention and its officers and members
are all subject to all the provisions of the existing Constitution. Now We hold
that even as to its latter task of proposing amendments to the Constitution, it
is subject to the provisions of Section I of Article XV. This must be so, because
it is plain to Us that the framers of the Constitution took care that the process
of amending the same should not be undertaken with the same ease and
facility in changing an ordinary legislation. Constitution making is the most
valued power, second to none, of the people in a constitutional democracy
such as the one our founding fathers have chosen for this nation, and which
we of the succeeding generations generally cherish. And because the
Constitution affects the lives, fortunes, future and every other conceivable
aspect of the lives of all the people within the country and those subject to its
sovereignty, every degree of care is taken in preparing and drafting it. A
constitution worthy of the people for which it is intended must not be prepared
in haste without adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less importance
than the whole Constitution itself, and perforce must be conceived and
prepared with as much care and deliberation. From the very nature of things,
the drafters of an original constitution, as already observed earlier, operate
without any limitations, restraints or inhibitions save those that they may
impose upon themselves. This is not necessarily true of subsequent
conventions called to amend the original constitution. Generally, the framers
of the latter see to it that their handiwork is not lightly treated and as easily
mutilated or changed, not only for reasons purely personal but more
importantly, because written constitutions are supposed to be designed so as
to last for some time, if not for ages, or for, at least, as long as they can be
adopted to the needs and exigencies of the people, hence, they must be
insulated against precipitate and hasty actions motivated by more or less
passing political moods or fancies. Thus, as a rule, the original constitutions
carry with them limitations and conditions, more or less stringent, made so by
the people themselves, in regard to the process of their amendment. And when
such limitations or conditions are so incorporated in the original constitution, it
does not lie in the delegates of any subsequent convention to claim that they
may ignore and disregard such conditions because they are as powerful and
omnipotent as their original counterparts.
Nothing of what is here said is to be understood as curtailing in any degree the
number and nature and the scope and extent of the amendments the
Convention may deem proper to propose. Nor does the Court propose to pass
on the issue extensively and brilliantly discussed by the parties as to whether
or not the power or duty to call a plebiscite for the ratification of the
amendments to be proposed by the Convention is exclusively legislative and
as such may be exercised only by the Congress or whether the said power
can be exercised concurrently by the Convention with the Congress. In the
view the Court takes of present case, it does not perceive absolute necessity
to resolve that question, grave and important as it may be. Truth to tell, the
lack of unanimity or even of a consensus among the members of the Court in
respect to this issue creates the need for more study and deliberation, and as
time is of the essence in this case, for obvious reasons, November 8, 1971,
the date set by the Convention for the plebiscite it is calling, being nigh, We
will refrain from making any pronouncement or expressing Our views on this
question until a more appropriate case comes to Us. After all, the basis of this
decision is as important and decisive as any can be.
The ultimate question, therefore boils down to this: Is there any limitation or
condition in Section 1 of Article XV of the Constitution which is violated by the
act of the Convention of calling for a plebiscite on the sole amendment
contained in Organic Resolution No. 1? The Court holds that there is, and it is
the condition and limitation that all the amendments to be proposed by the
same Convention must be submitted to the people in a single "election" or
plebiscite. It being indisputable that the amendment now proposed to be
submitted to a plebiscite is only the first amendment the Convention propose
We hold that the plebiscite being called for the purpose of submitting the same
for ratification of the people on November 8, 1971 is not authorized by Section
1 of Article XV of the Constitution, hence all acts of the Convention and the
respondent Comelec in that direction are null and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is sufficiently clear.
lt says distinctly that either Congress sitting as a constituent assembly or a
convention called for the purpose "may propose amendments to this
Constitution," thus placing no limit as to the number of amendments that
Congress or the Convention may propose. The same provision also as
definitely provides that "such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification," thus
leaving no room for doubt as to how many "elections" or plebiscites may be
held to ratify any amendment or amendments proposed by the same
constituent assembly of Congress or convention, and the provision
unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and
appropriateness of this provision. As already stated, amending the
Constitution is as serious and important an undertaking as constitution making
itself. Indeed, any amendment of the Constitution is as important as the whole
of it if only because the Constitution has to be an integrated and harmonious
instrument, if it is to be viable as the framework of the government it
establishes, on the one hand, and adequately formidable and reliable as the
succinct but comprehensive articulation of the rights, liberties, ideology, social
ideals, and national and nationalistic policies and aspirations of the people, on
the other. lt is inconceivable how a constitution worthy of any country or people
can have any part which is out of tune with its other parts..
A constitution is the work of the people thru its drafters assembled by them for
the purpose. Once the original constitution is approved, the part that the people
play in its amendment becomes harder, for when a whole constitution is
submitted to them, more or less they can assumed its harmony as an
integrated whole, and they can either accept or reject it in its entirety. At the
very least, they can examine it before casting their vote and determine for
themselves from a study of the whole document the merits and demerits of all
or any of its parts and of the document as a whole. And so also, when an
amendment is submitted to them that is to form part of the existing constitution,
in like fashion they can study with deliberation the proposed amendment in
relation to the whole existing constitution and or any of its parts and thereby
arrive at an intelligent judgment as to its acceptability.
This cannot happen in the case of the amendment in question. Prescinding
already from the fact that under Section 3 of the questioned resolution, it is
evident that no fixed frame of reference is provided the voter, as to what finally
will be concomitant qualifications that will be required by the final draft of the
constitution to be formulated by the Convention of a voter to be able to enjoy
the right of suffrage, there are other considerations which make it impossible
to vote intelligently on the proposed amendment, although it may already be
observed that under Section 3, if a voter would favor the reduction of the voting
age to eighteen under conditions he feels are needed under the
circumstances, and he does not see those conditions in the ballot nor is there
any possible indication whether they will ever be or not, because Congress
has reserved those for future action, what kind of judgment can he render on
the proposal?
But the situation actually before Us is even worse. No one knows what
changes in the fundamental principles of the constitution the Convention will
be minded to approve. To be more specific, we do not have any means of
foreseeing whether the right to vote would be of any significant value at all.
Who can say whether or not later on the Convention may decide to provide for
varying types of voters for each level of the political units it may divide the
country into. The root of the difficulty in other words, lies in that the Convention
is precisely on the verge of introducing substantial changes, if not radical ones,
in almost every part and aspect of the existing social and political order
enshrined in the present Constitution. How can a voter in the proposed
plebiscite intelligently determine the effect of the reduction of the voting age
upon the different institutions which the Convention may establish and of which
presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the ratification
of an amendment to the Constitution may be validly held, it must provide the
voter not only sufficient time but ample basis for an intelligent appraisal of the
nature of the amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole. In the context of
the present state of things, where the Convention has hardly started
considering the merits of hundreds, if not thousands, of proposals to amend
the existing Constitution, to present to the people any single proposal or a few
of them cannot comply with this requirement. We are of the opinion that the
present Constitution does not contemplate in Section 1 of Article XV a
plebiscite or "election" wherein the people are in the dark as to frame of
reference they can base their judgment on. We reject the rationalization that
the present Constitution is a possible frame of reference, for the simple reason
that intervenors themselves are stating that the sole purpose of the proposed
amendment is to enable the eighteen year olds to take part in the election for
the ratification of the Constitution to be drafted by the Convention. In brief,
under the proposed plebiscite, there can be, in the language of Justice
Sanchez, speaking for the six members of the Court in Gonzales, supra, "no
proper submission".
III
The Court has no desire at all to hamper and hamstring the noble work of the
Constitutional Convention. Much less does the Court want to pass judgment
on the merits of the proposal to allow these eighteen years old to vote. But like
the Convention, the Court has its own duties to the people under the
Constitution which is to decide in appropriate cases with appropriate parties
Whether or not the mandates of the fundamental law are being complied with.
In the best light God has given Us, we are of the conviction that in providing
for the questioned plebiscite before it has finished, and separately from, the
whole draft of the constitution it has been called to formulate, the Convention's
Organic Resolution No. 1 and all subsequent acts of the Convention
implementing the same violate the condition in Section 1, Article XV that there
should only be one "election" or plebiscite for the ratification of all the
amendments the Convention may propose. We are not denying any right of
the people to vote on the proposed amendment; We are only holding that
under Section 1, Article XV of the Constitution, the same should be submitted
to them not separately from but together with all the other amendments to be
proposed by this present Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic
Resolution No. 1 of the Constitutional Convention of 1971 and the
implementing acts and resolutions of the Convention, insofar as they provide
for the holding of a plebiscite on November 8, 1971, as well as the resolution
of the respondent Comelec complying therewith (RR Resolution No. 695) are
hereby declared null and void. The respondents Comelec, Disbursing Officer,
Chief Accountant and Auditor of the Constitutional Convention are hereby
enjoined from taking any action in compliance with the said organic resolution.
In view of the peculiar circumstances of this case, the Court declares this
decision immediately executory. No costs.
Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.
Separate Opinions
MAKALINTAL, J., reserves his vote
I reserve my vote. The resolution in question is voted down by a sufficient
majority of the Court on just one ground, which to be sure achieves the result
from the legal and constitutional viewpoint. I entertain grave doubts as to the
validity of the premises postulated and conclusions reached in support of the
dispositive portion of the decision. However, considering the urgent nature of
this case, the lack of time to set down at length my opinion on the particular
issue upon which the decision is made to rest, and the fact that a dissent on
the said issue would necessarily be inconclusive unless the other issues raised
in the petition are also considered and ruled upon a task that would be
premature and pointless at this time I limit myself to this reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:
We concur in the main opinion penned by Mr. Justice Barredo in his usual
inimitable, forthright and vigorous style. Like him, we do not express our
individual views on the wisdom of the proposed constitutional amendment,
which is not in issue here because it is a matter that properly and exclusively
addresses itself to the collective judgment of the people.
We must, however, articulate two additional objections of constitutional
dimension which, although they would seem to be superfluous because of the
reach of the basic constitutional infirmity discussed in extenso in the main
opinion, nevertheless appear to us to be just as fundamental in character and
scope.
Assuming that the Constitutional Convention has power to propose piecemeal
amendments and submit each separately to the people for ratification, we are
nonetheless persuaded that (1) that there is no proper submissionof title
proposed amendment in question within the meaning and intendment of
Section 1 of Article XV of the Constitution, and (2) that the forthcoming election
is not the proper election envisioned by the same provision of the Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission
on Elections 1 and Philippine Constitution Association vs. Commission on
Elections, 2 expounded his view, with which we essentially agree, on the
minimum requirements that must be met in order that there can be a proper
submission to the people of a proposed constitutional amendment. This is
what he said:
... amendments must be fairly laid before the people for their blessing
or spurning. The people are not to be mere rubber stamps. They are
not to vote blindly. They must be afforded ample opportunity to mull
over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly
 insidious influences. We believe the word "submitted" can only mean
that the government, within its maximum capabilities, should strain
every effort to inform citizen of the provisions to be amended, and the
proposed amendments and the meaning, nature and effects thereof.
By this, we are not to be understood as saying that, if one citizen or
100 citizens or 1,000 citizens cannot be reached, then there is no
submission within the meaning of the word as intended by the framers
of the Constitution. What the Constitution in effect directs is that the
government, in submitting an amendment for ratification, should put
every instrumentality or agency within its structural framework to
enlighten the people, educate them with respect to their act of
ratification or rejection. For we have earlier stated, one thing
is submission and another is ratification. There must be fair
submission, intelligent consent or rejection." .
The second constitutional objection was given expression by one of the writers
of this concurring opinion, in the following words:
I find it impossible to believe that it was ever intended by its framers
that such amendment should be submitted and ratified by just "a
majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification", if the concentration of the
people's attention thereon is to be diverted by other extraneous
issues, such as the choice of local and national officials. The framers
of the Constitution, aware of the fundamental character thereof, and
of the need of giving it as much stability as is practicable, could have
only meant that any amendments thereto should be debated,
considered and voted upon an election wherein the people could
devote undivided attention to the subject. 4
True it is that the question posed by the proposed amendment, "Do you or do
you not want the 18-year old to be allowed to vote?," would seem to be
uncomplicated and innocuous. But it is one of life's verities that things which
appear to be simple may turn out not to be so simple after all.
A number of doubts or misgivings could conceivably and logically assail the
average voter. Why should the voting age be lowered at all, in the first place?
Why should the new voting age be precisely 18 years, and not 19 or 20? And
why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-year old
so that there is no need of an educational qualification to entitle him to vote?
In this age of permissiveness and dissent, can the 18-year old be relied upon
to vote with judiciousness when the 21-year old, in the past elections, has not
performed so well? If the proposed amendment is voted down by the people,
will the Constitutional Convention insist on the said amendment? Why is there
an unseemly haste on the part of the Constitutional Convention in having this
particular proposed amendment ratified at this particular time? Do some of the
members of the Convention have future political plans which they want to
begin to subserve by the approval this year of this amendment? If this
amendment is approved, does it thereby mean that the 18-year old should now
also shoulder the moral and legal responsibilities of the 21-year old? Will he
be required to render compulsory military service under the colors? Will the
age of contractual consent be reduced to 18 years? If I vote against this
amendment, will I not be unfair to my own child who will be 18 years old, come
1973? .
The above are just samplings from here, there and everywhere from a
domain (of searching questions) the bounds of which are not immediately
ascertainable. Surely, many more questions can be added to the already long
litany. And the answers cannot be had except as the questions are debated
fully, pondered upon purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and by
election time will not be, sufficiently informed of the meaning, nature and
effects of the proposed constitutional amendment. They have not been
afforded ample time to deliberate thereon conscientiously. They have been
and are effectively distracted from a full and dispassionate consideration of the
merits and demerits of the proposed amendment by their traditional pervasive
involvement in local elections and politics. They cannot thus weigh in tranquility
the need for and the wisdom of the proposed amendment.
Upon the above disquisition, it is our considered view that the intendment of
the words, "at an election at which the amendments are submitted to the
people for their ratification," embodied in Section 1 of Article XV of the
Constitution, has not been met.
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court penned by Justice
Barredo, characterized by clarity and vigor, its manifestation of fealty to the
rule of law couched in eloquent language, that commands assent. As the
Constitution occupies the topmost rank in the hierarchy of legal norms,
Congress and Constitutional Convention alike, no less than this Court, must
bow to its supremacy. Thereby constitutionalism asserts itself. With the view I
entertain of what is allowable, if not indeed required by the Constitution, my
conformity does not extend as far as the acceptance of the conclusion
reached. The question presented is indeed novel, not being controlled by
constitutional prescription, definite and certain. Under the circumstances, with
the express recognition in the Constitution of the powers of the Constitutional
Convention to propose amendments, I cannot discern any objection to the
validity of its action there being no legal impediment that would call for its
nullification. Such an approach all the more commends itself to me considering
that what was sought to be done is to refer the matter to the people in whom,
according to our Constitution, sovereignty resides. It is in that sense that, with
due respect, I find myself unable to join my brethren.
I. It is understandable then why the decisive issue posed could not be resolved
by reliance on, implicit in the petition and the answer of intervenors, such
concepts as legislative control of the constitutional convention referred to by
petitioner on the one hand or, on the other, the theory of conventional
sovereignty favored by intervenors. It is gratifying to note that during the oral
argument of petitioner and counsel for respondents and intervenors, there
apparently was a retreat from such extreme position, all parties, as should be
the case, expressly avowing the primacy of the Constitution, the applicable
provision of which as interpreted by this Court, should be controlling on both
Congress and the Convention. It cannot be denied though that in at least one
American state, that is Pennsylvania, there were decisions announcing the
doctrine that the powers to be exercised by a constitutional convention are
dependent on a legislative grant, in the absence of any authority conferred
directly by the fundamental law. The result is a convention that is subordinate
to the lawmaking body. Its field of competence is circumscribed. It has to look
to the latter for the delimitation of its permissible scope of activity. It is thus
made subordinate to the legislature. Nowhere has such a view been more
vigorously expressed than in the Pennsylvania case of Wood's Appeal. 1 Its
holding though finds no support under our constitutional provision.
It does not thereby follow that while free from legislative control, a
constitutional convention may lay claim to an attribute sovereign in character.
The Constitution is quite explicit that it is to the people, and to the people alone,
in whom sovereignty resides. 2 Such a prerogative is therefore withheld from a
convention. It is an agency entrusted with the responsibility of high import and
significance it is true; it is denied unlimited legal competence though. That is
what sovereignty connotes. It has to yield to the superior force of the
Constitution. There can then be no basis for the exaggerated pretension that
it is an alter ego of the people. It is to be admitted that there are some American
state decisions, the most notable of which is Sproule v. Fredericks, 3 a
Mississippi case, that dates back to 1892, that yield a different conclusion. The
doctrine therein announced cannot bind us. Our Constitution makes clear that
the power of a constitutional convention is not sovereign. It is appropriately
termed constituent, limited as it is to the purpose of drafting a constitution or
proposing revision or amendments to one in existence, subject in either case
to popular approval.
The view that commends itself for acceptance is that legislature and
constitutional convention, alike recognized by the Constitution, are coordinate,
there being no superiority of one over the other. Insofar as the constituent
power of proposing amendments to the Constitution is concerned, a
constitutional convention enjoys a wide sphere of autonomy consistently with
the Constitution which can be the only source of valid restriction on its
competence. It is true it is to the legislative body that the call to a convention
must proceed, but once convened, it cannot in any wise be interfered with,
much less controlled by Congress. A contrary conclusion would impair its
usefulness for the delicate, and paramount task assigned to it. A convention
then is to be looked upon as if it were one of the three coordinate departments
which under the principle of separation of powers is supreme within its field
and has exclusive cognizance of matters properly subject to its jurisdiction. A
succinct statement of the appropriate principle that should govern the
relationship between a constitutional convention and a legislative body under
American law is that found in Orfield's work. Thus: "The earliest view seems
to have been that a convention was absolute. The convention was sovereign
and subject to no restraint. On the other hand, Jameson, whose views have
been most frequently cited in decisions, viewed a convention as a body with
strictly limited powers, and subject to the restrictions imposed on it by the
legislative call. A third and intermediate view is that urged by Dodd that a
convention, though not sovereign, is a body independent of the legislature; it
is bound by the existing constitution, but not by the acts of the legislature, as
to the extent of its constituent power. This view has become increasingly
prevalent in the state decisions." 4
2. It is to the Constitution, and to the Constitution alone then, as so vigorously
stressed in the opinion of the Court, that any limitation on the power the
Constitutional, Convention must find its source. I turn to its Article XV. It reads:
"The Congress in joint session assembled, by a vote of three fourths of all the
Members of the Senate and of the House of Representatives voting
separately, may propose amendments to this Constitution or call a convention
for that purpose. Such amendments shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for their ratification."
Clearly, insofar as amendments, including revision, are concerned, there are
two steps, proposal and thereafter ratification. Thus as to the former, two
constituent bodies are provided for, the Congress of the Philippines in the
mode therein provided, and a constitutional convention that may be called into
being. Once assembled, a constitutional convention, like the Congress of the
Philippines, possesses in all its plenitude the constituent power. Inasmuch as
Congress may determine what amendments it would have the people ratify
and thereafter take all the steps necessary so that the approval or disapproval
of the electorate may be obtained, the convention likewise, to my mind, should
be deemed possessed of all the necessary authority to assure that whatever
amendments it seeks to introduce would be submitted to the people at an
election called for that purpose. It would appear to me that to view the
convention as being denied a prerogative which is not withheld from Congress
as a constituent body would be to place it in an inferior category. Such a
proposition I do not find acceptable. Congress and constitutional convention
are agencies for submitting proposals under the fundamental law. A power
granted to one should not be denied the other. No justification for such a
drastic differentiation either in theory or practice exists.
Such a conclusion has for me the added reinforcement that to require ordinary
legislation before the convention could be enabled to have its proposals voted
on by the people would be to place a power in the legislative and executive
branches that could, whether by act or omission, result in the frustration of the
amending process. I am the first to admit that such likelihood is remote, but if
such a risk even if minimal could be avoided, it should be, unless the
compelling force of an applicable constitutional provision requires otherwise.
Considering that a constitutional convention is not precluded from imposing
additional restrictions on the powers of either the executive or legislative
branches, or, for that matter, the judiciary, it would appear to be the better
policy to interpret Article XV in such a way that would not sanction such
restraint on the authority that must be recognized as vested in a constitutional
convention. There is nothing in such a view that to my mind would collide with
a reasonable interpretation of Article XV. It certainly is one way by which freed
from pernicious abstractions, it would be easier to accommodate a constitution
to the needs of an unfolding future. That is to facilitate its being responsive to
the challenge that time inevitably brings in its wake.
From such an approach then, I am irresistibly led to the conclusion that the
challenged resolution was well within the power of the convention. That would
be to brush aside the web of unreality spun from a too-restrictive mode of
appraising the legitimate scope of its competence. That would be, for me, to
give added vigor and life to the conferment of authority vested in it, attended
by such grave and awesome responsibility.
3. It becomes pertinent to inquire then whether the last sentence of Article XV
providing that such amendment shall be valid when submitted and thereafter
approved by the majority of the votes cast by the people at an election is a bar
to the proposed submission. It is the conclusion arrived at by my brethren that
there is to be only one election and that therefore the petition must be
sustained as only when the convention has finished its work should all
amendments proposed be submitted for ratification. That is not for me, and I
say this with respect, the appropriate interpretation. It is true that the
Constitution uses the word "election" in the singular, but that is not decisive.
No undue reliance should be accorded rules of grammar; they do not exert a
compelling force in constitutional interpretation. Meaning is to be sought not
from specific language in the singular but from the mosaic of significance
derived from the total context. It could be, if it were not thus, self-defeating.
Such a mode of construction does not commend itself. The words used in the
Constitution are not inert; they derive vitality from the obvious purposes at
which they are aimed. Petitioner's stress on linguistic refinement, while not
implausible does not, for me, carry the day.
It was likewise argued by petitioner that the proposed amendment is
provisional and therefore is not such as was contemplated in this article. I do
not find such contention convincing. The fact that the Constitutional
Convention did seek to consult the wishes of the people by the proposed
submission of a tentative amendatory provision is an argument for its validity.
It might be said of course that until impressed with finality, an amendment is
not to be passed upon by the electorate. There is plausibility in such a view. A
literal reading of the Constitution would support it. The spirit that informs it
though would not, for me, be satisfied. From its silence I deduce the inference
that there is no repugnancy to the fundamental law when the Constitutional
Convention ascertains the popular will. In that sense, the Constitution, to follow
the phraseology of Thomas Reed Powel, is not silently silent but silently vocal.
What I deem the more important consideration is that while a public official, as
an agent, has to locate his source of authority in either Constitution or statute,
the people, as the principal, can only be limited in the exercise of their
sovereign powers by the express terms of the Constitution. A concept to the
contrary would to my way of thinking be inconsistent with the fundamental
principle that it is in the people, and the people alone, that sovereignty resides.
4. The constitutional Convention having acted within the scope of its authority,
an action to restrain or prohibit respondent Commission on Elections from
conducting the plebiscite does not lie. It should not be lost sight of that the
Commission on Elections in thus being charged with such a duty does not act
in its capacity as the constitutional agency to take charge of all laws relative to
the conduct of election. That is a purely executive function vested in it under
Article X of the Constitution. 5 It is not precluded from assisting the
Constitutional Convention if pursuant to its competence to amend the
fundamental law it seeks, as in this case, to submit a proposal, even if
admittedly tentative, to the electorate to ascertain its verdict. At any rate, it may
be implied that under the 1971 Constitutional Convention Act, it is not to turn
a deaf ear to a summons from the Convention to aid it in the legitimate
discharge of its functions. 6
The aforesaid considerations, such as they are, but which for me have a force
that I mind myself unable to overcome, leave me no alternative but to dissent
from my brethren, with due acknowledgement of course that from their basic
premises, the conclusion arrived at by them cannot be characterized as in any
wise bereft of a persuasive quality of a high order.

G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed
OPOSA, minors, and represented by their parents ANTONIO and
RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by
her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD
and PATRISHA, all surnamed FLORES, minors and represented by their
parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II
and MA. CONCEPCION, all surnamed MISA, minors and represented by
their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE
MARIE ALFARO, minor, represented by her parents JOSE and MARIA
VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor,
represented by her parents FREDENIL and JANE CASTRO, JOHANNA
DESAMPARADO, minor, represented by her parents JOSE and ANGELA
DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented by
his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA.
MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all
surnamed SAENZ, minors, represented by their parents ROBERTO and
AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and
DAVID IAN, all surnamed KING, minors, represented by their parents
MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE
VICTORIA, all surnamed ENDRIGA, minors, represented by their parents
BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all
surnamed ABAYA, minors, represented by their parents ANTONIO and
MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed
CARDAMA, minors, represented by their parents MARIO and LINA
CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all
surnamed OPOSA, minors and represented by their parents RICARDO
and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH
JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE
MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL
and FRANCISCO, all surnamed BIBAL, minors, represented by their
parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE
ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the
Secretary of the Department of Environment and Natural Resources, and
THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC,
Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced
and healthful ecology which the petitioners dramatically associate with the twin
concepts of "inter-generational responsibility" and "inter-generational justice."
Specifically, it touches on the issue of whether the said petitioners have a
cause of action to "prevent the misappropriation or impairment" of Philippine
rainforests and "arrest the unabated hemorrhage of the country's vital life
support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before
Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National
Capital Judicial Region. The principal plaintiffs therein, now the principal
petitioners, are all minors duly represented and joined by their respective
parents. Impleaded as an additional plaintiff is the Philippine Ecological
Network, Inc. (PENI), a domestic, non-stock and non-profit corporation
organized for the purpose of, inter alia, engaging in concerted action geared
for the protection of our environment and natural resources. The original
defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the
Department of Environment and Natural Resources (DENR). His substitution
in this petition by the new Secretary, the Honorable Angel C. Alcala, was
subsequently ordered upon proper motion by the petitioners. 1 The
complaint 2 was instituted as a taxpayers' class suit 3 and alleges that the
plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and
entitled to the full benefit, use and enjoyment of the natural resource treasure
that is the country's virgin tropical forests." The same was filed for themselves
and others who are equally concerned about the preservation of said resource
but are "so numerous that it is impracticable to bring them all before the Court."
The minors further asseverate that they "represent their generation as well as
generations yet unborn." 4 Consequently, it is prayed for that judgment be
rendered:
. . . ordering defendant, his agents, representatives and other persons
acting in his behalf to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing
or approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises." 5
The complaint starts off with the general averments that the Philippine
archipelago of 7,100 islands has a land area of thirty million (30,000,000)
hectares and is endowed with rich, lush and verdant rainforests in which
varied, rare and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures which
have existed, endured and flourished since time immemorial; scientific
evidence reveals that in order to maintain a balanced and healthful ecology,
the country's land area should be utilized on the basis of a ratio of fifty-four per
cent (54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted
in a host of environmental tragedies, such as (a) water shortages resulting
from drying up of the water table, otherwise known as the "aquifer," as well as
of rivers, brooks and streams, (b) salinization of the water table as a result of
the intrusion therein of salt water, incontrovertible examples of which may be
found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive
erosion and the consequential loss of soil fertility and agricultural productivity,
with the volume of soil eroded estimated at one billion (1,000,000,000) cubic
meters per annum approximately the size of the entire island of
Catanduanes, (d) the endangering and extinction of the country's unique, rare
and varied flora and fauna, (e) the disturbance and dislocation of cultural
communities, including the disappearance of the Filipino's indigenous cultures,
(f) the siltation of rivers and seabeds and consequential destruction of corals
and other aquatic life leading to a critical reduction in marine resource
productivity, (g) recurrent spells of drought as is presently experienced by the
entire country, (h) increasing velocity of typhoon winds which result from the
absence of windbreakers, (i) the floodings of lowlands and agricultural plains
arising from the absence of the absorbent mechanism of forests, (j) the siltation
and shortening of the lifespan of multi-billion peso dams constructed and
operated for the purpose of supplying water for domestic uses, irrigation and
the generation of electric power, and (k) the reduction of the earth's capacity
to process carbon dioxide gases which has led to perplexing and catastrophic
climatic changes such as the phenomenon of global warming, otherwise
known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of
continued and deforestation are so capable of unquestionable demonstration
that the same may be submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present expert witnesses as
well as documentary, photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16)
million hectares of rainforests constituting roughly 53% of the country's
land mass.
9. Satellite images taken in 1987 reveal that there remained no more
than 1.2 million hectares of said rainforests or four per cent (4.0%) of
the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin
old-growth rainforests are left, barely 2.8% of the entire land mass of
the Philippine archipelago and about 3.0 million hectares of immature
and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have
granted timber license agreements ('TLA's') to various corporations to
cut the aggregate area of 3.89 million hectares for commercial logging
purposes.
A copy of the TLA holders and the corresponding areas covered is
hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares
per annum or 25 hectares per hour nighttime, Saturdays, Sundays
and holidays included the Philippines will be bereft of forest
resources after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and
irreparable damage of this continued trend of deforestation to the
plaintiff minor's generation and to generations yet unborn are evident
and incontrovertible. As a matter of fact, the environmental damages
enumerated in paragraph 6 hereof are already being felt, experienced
and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and
deforest the remaining forest stands will work great damage and
irreparable injury to plaintiffs especially plaintiff minors and their
successors who may never see, use, benefit from and enjoy this
rare and unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or
impairment of the natural resource property he holds in trust for the
benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and
healthful ecology and are entitled to protection by the State in its
capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the
defendant's office. On March 2, 1990, plaintiffs served upon defendant
a final demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached
as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's
to the continuing serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's
is an act violative of the rights of plaintiffs, especially plaintiff minors
who may be left with a country that is desertified (sic), bare, barren
and devoid of the wonderful flora, fauna and indigenous cultures which
the Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is
manifestly contrary to the public policy enunciated in the Philippine
Environmental Policy which, in pertinent part, states that it is the policy
of the State
(a) to create, develop, maintain and improve conditions under which
man and nature can thrive in productive and enjoyable harmony with
each other;
(b) to fulfill the social, economic and other requirements of present and
future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is
conductive to a life of dignity and well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the
aforementioned TLA's is contradictory to the Constitutional policy of
the State to
a. effect "a more equitable distribution of opportunities, income and
wealth" and "make full and efficient use of natural resources (sic)."
(Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources
(sic)" (Section 14, Article XIV,id.);
d. "protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature."
(Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind
the natural law and violative of plaintiffs' right to self-preservation
and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other
than the instant action to arrest the unabated hemorrhage of the
country's vital life support systems and continued rape of Mother
Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a
Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the
plaintiffs have no cause of action against him and (2) the issue raised by the
plaintiffs is a political question which properly pertains to the legislative or
executive branches of Government. In their 12 July 1990 Opposition to the
Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action
presents a justiciable question as it involves the defendant's abuse of
discretion.
On 18 July 1991, respondent Judge issued an order granting the
aforementioned motion to dismiss. 7 In the said order, not only was the
defendant's claim that the complaint states no cause of action against him
and that it raises a political question sustained, the respondent Judge
further ruled that the granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of
the Revised Rules of Court and ask this Court to rescind and set aside the
dismissal order on the ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the plaintiffs-minors
not only represent their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required
the parties to submit their respective Memoranda after the Office of the
Solicitor General (OSG) filed a Comment in behalf of the respondents and the
petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause
of action as it contains sufficient allegations concerning their right to a sound
environment based on Articles 19, 20 and 21 of the Civil Code (Human
Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR,
Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental
Policy), Section 16, Article II of the 1987 Constitution recognizing the right of
the people to a balanced and healthful ecology, the concept of generational
genocide in Criminal Law and the concept of man's inalienable right to self-
preservation and self-perpetuation embodied in natural law. Petitioners
likewise rely on the respondent's correlative obligation per Section 4 of E.O.
No. 192, to safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave
abuse of discretion in granting Timber License Agreements (TLAs) to cover
more areas for logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-
impairment clause, petitioners maintain that the same does not apply in this
case because TLAs are not contracts. They likewise submit that even if TLAs
may be considered protected by the said clause, it is well settled that they may
still be revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in
their complaint a specific legal right violated by the respondent Secretary for
which any relief is provided by law. They see nothing in the complaint but
vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its capacity
as parens patriae." Such allegations, according to them, do not reveal a valid
cause of action. They then reiterate the theory that the question of whether
logging should be permitted in the country is a political question which should
be properly addressed to the executive or legislative branches of Government.
They therefore assert that the petitioners' resources is not to file an action to
court, but to lobby before Congress for the passage of a bill that would ban
logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the
same cannot be done by the State without due process of law. Once issued,
a TLA remains effective for a certain period of time usually for twenty-five
(25) years. During its effectivity, the same can neither be revised nor cancelled
unless the holder has been found, after due notice and hearing, to have
violated the terms of the agreement or other forestry laws and regulations.
Petitioners' proposition to have all the TLAs indiscriminately cancelled without
the requisite hearing would be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters.
Petitioners instituted Civil Case No. 90-777 as a class suit. The original
defendant and the present respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is indeed a class suit.
The subject matter of the complaint is of common and general interest not just
to several, but to all citizens of the Philippines. Consequently, since the parties
are so numerous, it, becomes impracticable, if not totally impossible, to bring
all of them before the court. We likewise declare that the plaintiffs therein are
numerous and representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of a valid class suit
under Section 12, Rule 3 of the Revised Rules of Court are present both in the
said civil case and in the instant petition, the latter being but an incident to the
former.
This case, however, has a special and novel element. Petitioners minors
assert that they represent their generation as well as generations yet unborn.
We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based
on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter
expounded, considers the "rhythm and harmony of nature." Nature means the
created world in its entirety. 9 Such rhythm and harmony indispensably
include, inter alia, the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the present
as well as future generations. 10 Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full
enjoyment of a balanced and healthful ecology. Put a little differently, the
minors' assertion of their right to a sound environment constitutes, at the same
time, the performance of their obligation to ensure the protection of that right
for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now
proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous
consideration and evaluation of the issues raised and arguments adduced by
the parties, We do not hesitate to find for the petitioners and rule against the
respondent Judge's challenged order for having been issued with grave abuse
of discretion amounting to lack of jurisdiction. The pertinent portions of the said
order reads as follows:
xxx xxx xxx
 After a careful and circumspect evaluation of the Complaint,
the Court cannot help but agree with the defendant. For
although we believe that plaintiffs have but the noblest of all
intentions, it (sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking to enforce
and protect, or a specific legal wrong they are seeking to
prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague
assumptions and vague conclusions based on unverified
data. In fine, plaintiffs fail to state a cause of action in its
Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before
it, being impressed with political color and involving a matter
of public policy, may not be taken cognizance of by this Court
without doing violence to the sacred principle of "Separation
of Powers" of the three (3) co-equal branches of the
Government.
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs prayed
for by the plaintiffs, i.e., to cancel all existing timber license
agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount
to "impairment of contracts" abhored (sic) by the fundamental
law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to
allege with sufficient definiteness a specific legal right involved or a specific
legal wrong committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A reading of the
complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to a
balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law. Section
16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people
to a balanced and healthful ecology in accord with the rhythm and
harmony of nature.
This right unites with the right to health which is provided for in the
preceding section of the same article:
Sec. 15. The State shall protect and promote the right to health of the
people and instill health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it
does not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-
perpetuation aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even be written
in the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental charter, it
is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies
by the Constitution itself, thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve the first and protect
and advance the second, the day would not be too far when all else would be
lost not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty
to refrain from impairing the environment. During the debates on this right in
one of the plenary sessions of the 1986 Constitutional Commission, the
following exchange transpired between Commissioner Wilfrido Villacorta and
Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all
forms of pollution air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment
necessarily carries with it the correlative duty of not impairing the same
and, therefore, sanctions may be provided for impairment of
environmental balance. 12
The said right implies, among many other things, the judicious management
and conservation of the country's forests.
Without such forests, the ecological or environmental balance would
be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and
the right to health, as well as the other related provisions of the Constitution
concerning the conservation, development and utilization of the country's
natural resources, 13 then President Corazon C. Aquino promulgated on 10
June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the
Department of Environment and Natural Resources "shall be the primary
government agency responsible for the conservation, management,
development and proper use of the country's environment and natural
resources, specifically forest and grazing lands, mineral, resources, including
those in reservation and watershed areas, and lands of the public domain, as
well as the licensing and regulation of all natural resources as may be provided
for by law in order to ensure equitable sharing of the benefits derived therefrom
for the welfare of the present and future generations of Filipinos." Section 3
thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the policy of the
State to ensure the sustainable use, development, management,
renewal, and conservation of the country's forest, mineral, land, off-
shore areas and other natural resources, including the protection and
enhancement of the quality of the environment, and equitable access
of the different segments of the population to the development and the
use of the country's natural resources, not only for the present
generation but for future generations as well. It is also the policy of the
state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization,
development and conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987, 15specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for the
benefit of the Filipino people, the full exploration and development as
well as the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources, consistent with
the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment and the
objective of making the exploration, development and utilization of
such natural resources equitably accessible to the different segments
of the present as well as future generations.
(2) The State shall likewise recognize and apply a true value system
that takes into account social and environmental cost implications
relative to the utilization, development and conservation of our natural
resources.
The above provision stresses "the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment." Section
2 of the same Title, on the other hand, specifically speaks of the mandate of
the DENR; however, it makes particular reference to the fact of the agency's
being subject to law and higher authority. Said section provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural
Resources shall be primarily responsible for the implementation of the
foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying
out the State's constitutional mandate to control and supervise the
exploration, development, utilization, and conservation of the
country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the
objectives which will serve as the bases for policy formulation, and have
defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the
"environmental right" of the present and future generations. On 6 June 1977,
P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine
Environment Code) were issued. The former "declared a continuing policy of
the State (a) to create, develop, maintain and improve conditions under which
man and nature can thrive in productive and enjoyable harmony with each
other, (b) to fulfill the social, economic and other requirements of present and
future generations of Filipinos, and (c) to insure the attainment of an
environmental quality that is conducive to a life of dignity and well-being." 16 As
its goal, it speaks of the "responsibilities of each generation as trustee and
guardian of the environment for succeeding generations." 17 The latter statute,
on the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced
and healthful ecology is as clear as the DENR's duty under its mandate and
by virtue of its powers and functions under E.O. No. 192 and the Administrative
Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or
obligation to respect or protect the same gives rise to a cause of action.
Petitioners maintain that the granting of the TLAs, which they claim was done
with grave abuse of discretion, violated their right to a balanced and healthful
ecology; hence, the full protection thereof requires that no further TLAs should
be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or
rights of the other; and its essential elements are legal right of the
plaintiff, correlative obligation of the defendant, and act or omission of
the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground
that the complaint fails to state a cause of action, 19 the question submitted to
the court for resolution involves the sufficiency of the facts alleged in the
complaint itself. No other matter should be considered; furthermore, the truth
of falsity of the said allegations is beside the point for the truth thereof is
deemed hypothetically admitted. The only issue to be resolved in such a case
is: admitting such alleged facts to be true, may the court render a valid
judgment in accordance with the prayer in the complaint? 20 InMilitante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise
the utmost care and circumspection in passing upon a motion to dismiss on
the ground of the absence thereof [cause of action] lest, by its failure to
manifest a correct appreciation of the facts alleged and deemed hypothetically
admitted, what the law grants or recognizes is effectively nullified. If that
happens, there is a blot on the legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements
under the introductory affirmative allegations, as well as the specific averments
under the sub-heading CAUSE OF ACTION, to be adequate enough to
show, prima facie, the claimed violation of their rights. On the basis thereof,
they may thus be granted, wholly or partly, the reliefs prayed for. It bears
stressing, however, that insofar as the cancellation of the TLAs is concerned,
there is the need to implead, as party defendants, the grantees thereof for they
are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political
question. Policy formulation or determination by the executive or legislative
branches of Government is not squarely put in issue. What is principally
involved is the enforcement of a right vis-a-vis policies already formulated and
expressed in legislation. It must, nonetheless, be emphasized that the political
question doctrine is no longer, the insurmountable obstacle to the exercise of
judicial power or the impenetrable shield that protects executive and legislative
actions from judicial inquiry or review. The second paragraph of section 1,
Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.
22
Commenting on this provision in his book, Philippine Political Law, Mr.
Justice Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of
judicial power, involving the settlement of conflicting rights as
conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review
what was before forbidden territory, to wit, the discretion of the political
departments of the government.
As worded, the new provision vests in the judiciary, and particularly
the Supreme Court, the power to rule upon even the wisdom of the
decisions of the executive and the legislature and to declare their acts
invalid for lack or excess of jurisdiction because tainted with grave
abuse of discretion. The catch, of course, is the meaning of "grave
abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even
less tenable and decisive. The reason is that, even if we were to
assume that the issue presented before us was political in nature, we
would still not be precluded from revolving it under the expanded
jurisdiction conferred upon us that now covers, in proper cases, even
the political question. Article VII, Section 1, of the Constitution clearly
provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the
non-impairment of contracts clause found in the Constitution. The court a
quo declared that:
The Court is likewise of the impression that it cannot, no matter how we
stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e.,
to cancel all existing timber license agreements in the country and to
cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements. For to do otherwise would
amount to "impairment of contracts" abhored (sic) by the fundamental
law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked,
by such a sweeping pronouncement. In the first place, the respondent
Secretary did not, for obvious reasons, even invoke in his motion to dismiss
the non-impairment clause. If he had done so, he would have acted with
utmost infidelity to the Government by providing undue and unwarranted
benefits and advantages to the timber license holders because he would have
forever bound the Government to strictly respect the said licenses according
to their terms and conditions regardless of changes in policy and the demands
of public interest and welfare. He was aware that as correctly pointed out by
the petitioners, into every timber license must be read Section 20 of the
Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President
may amend, modify, replace or rescind any contract, concession, permit,
licenses or any other form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by
executive action. It is not a contract, property or a property right protested
by the due process clause of the Constitution. In Tan vs. Director of
Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the
utilization and disposition of forest resources to the end that public
welfare is promoted. A timber license is not a contract within the
purview of the due process clause; it is only a license or privilege,
which can be validly withdrawn whenever dictated by public interest or
public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would
be unlawful, and is not a contract between the authority, federal, state,
or municipal, granting it and the person to whom it is granted; neither
is it property or a property right, nor does it create a vested right; nor
is it taxation (37 C.J. 168). Thus, this Court held that the granting of
license does not create irrevocable rights, neither is it property or
property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy
Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal
instruments by which the State regulates the utilization and disposition
of forest resources to the end that public welfare is promoted. And it
can hardly be gainsaid that they merely evidence a privilege granted
by the State to qualified entities, and do not vest in the latter a
permanent or irrevocable right to the particular concession area and
the forest products therein. They may be validly amended, modified,
replaced or rescinded by the Chief Executive when national interests
so require. Thus, they are not deemed contracts within the purview of
the due process of law clause [See Sections 3(ee) and 20 of Pres.
Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R.
No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which
reads:
Sec. 10. No law impairing, the obligation of contracts shall be
passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts,
the instant case does not involve a law or even an executive issuance
declaring the cancellation or modification of existing timber licenses. Hence,
the non-impairment clause cannot as yet be invoked. Nevertheless, granting
further that a law has actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a violation of the non-
impairment clause. This is because by its very nature and purpose, such as
law could have only been passed in the exercise of the police power of the
state for the purpose of advancing the right of the people to a balanced and
healthful ecology, promoting their health and enhancing the general welfare.
In Abe vs. Foster Wheeler Corp. 28 this Court stated:
The freedom of contract, under our system of government, is
not meant to be absolute. The same is understood to be
subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In other
words, the constitutional guaranty of non-impairment of
obligations of contract is limited by the exercise of the police
power of the State, in the interest of public health, safety,
moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted
in Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:
Under our form of government the use of property and the making of
contracts are normally matters of private and not of public concern.
The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are
absolute; for government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private right
is that of the public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the
state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment
clause could apply with respect to the prayer to enjoin the respondent
Secretary from receiving, accepting, processing, renewing or approving new
timber licenses for, save in cases of renewal, no contract would have as of yet
existed in the other instances. Moreover, with respect to renewal, the holder is
not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby
GRANTED, and the challenged Order of respondent Judge of 18 July 1991
dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or
grantees of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo
and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.
Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide,
Jr., J., in this case which, to my mind, is one of the most important cases
decided by this Court in the last few years. The seminal principles laid down
in this decision are likely to influence profoundly the direction and course of
the protection and management of the environment, which of course embraces
the utilization of all the natural resources in the territorial base of our polity. I
have therefore sought to clarify, basically to myself, what the Court appears to
be saying.
The Court explicitly states that petitioners have the locus standi necessary to
sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus
standi is not a function of petitioners' claim that their suit is properly regarded
as a class suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of the very
broadness of the concept of "class" here involved membership in this
"class" appears to embrace everyone living in the country whether now or in
the future it appears to me that everyone who may be expected to benefit
from the course of action petitioners seek to require public respondents to take,
is vested with the necessary locus standi. The Court may be seen therefore to
be recognizing a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency directly concerned
and the private persons or entities operating in the field or sector of activity
involved. Whether such beneficiaries' right of action may be found under any
and all circumstances, or whether some failure to act, in the first instance, on
the part of the governmental agency concerned must be shown ("prior
exhaustion of administrative remedies"), is not discussed in the decision and
presumably is left for future determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon
"one specific fundamental legal right the right to a balanced and healthful
ecology" (Decision, p. 14). There is no question that "the right to a balanced
and healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with
very great respect, that it cannot be characterized as "specific," without doing
excessive violence to language. It is in fact very difficult to fashion language
more comprehensive in scope and generalized in character than a right to "a
balanced and healthful ecology." The list of particular claims which can be
subsumed under this rubic appears to be entirely open-ended: prevention and
control of emission of toxic fumes and smoke from factories and motor
vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into
rivers, inland and coastal waters by vessels, oil rigs, factories, mines and
whole communities; of dumping of organic and inorganic wastes on open land,
streets and thoroughfares; failure to rehabilitate land after strip-mining or open-
pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral
reefs and other living sea resources through the use of dynamite or cyanide
and other chemicals; contamination of ground water resources; loss of certain
species of fauna and flora; and so on. The other statements pointed out by the
Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1,
Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated
6 June 1977 all appear to be formulations of policy, as general and abstract
as the constitutional statements of basic policy in Article II, Section 16 ("the
right to a balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment
Code," is, upon the other hand, a compendious collection of more "specific
environment management policies" and "environment quality standards"
(fourth "Whereas" clause, Preamble) relating to an extremely wide range of
topics:
(a) air quality management;
 (b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners
nor the Court has identified the particular provision or provisions (if any) of the
Philippine Environment Code which give rise to a specific legal right which
petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the
formulation and implementation of guidelines and programs dealing with each
of the headings and sub-headings mentioned above. The Philippine
Environment Code does not, in other words, appear to contemplate action on
the part of private persons who are beneficiaries of implementation of that
Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a
legal right comprised in the constitutional statements above noted, the Court
is in effect saying that Section 15 (and Section 16) of Article II of the
Constitution are self-executing and judicially enforceable even in their present
form. The implications of this doctrine will have to be explored in future cases;
those implications are too large and far-reaching in nature even to be hinted
at here.
My suggestion is simply that petitioners must, before the trial court, show a
more specific legal right a right cast in language of a significantly lower order
of generality than Article II (15) of the Constitution that is or may be violated
by the actions, or failures to act, imputed to the public respondent by
petitioners so that the trial court can validly render judgment granting all or part
of the relief prayed for. To my mind, the Court should be understood as simply
saying that such a more specific legal right or rights may well exist in
our corpus of law, considering the general policy principles found in the
Constitution and the existence of the Philippine Environment Code, and that
the trial court should have given petitioners an effective opportunity so to
demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component
of a cause of action be a specific, operable legal right, rather than a
constitutional or statutory policy, for at least two (2) reasons. One is that unless
the legal right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be unable to defend
themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.
The second is a broader-gauge consideration where a specific violation of
law or applicable regulation is not alleged or proved, petitioners can be
expected to fall back on the expanded conception of judicial power in the
second paragraph of Section 1 of Article VIII of the Constitution which reads:
Section 1. . . .
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 agrave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced
and healthy ecology" and "the right to health" are combined with
remedial standards as broad ranging as "a grave abuse of discretion
amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of
social and economic policy making. At least in respect of the vast area
of environmental protection and management, our courts have no
claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making departments
the legislative and executive departments must be given a real and
effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies,
whose concession agreements or TLA's petitioners demand public
respondents should cancel, must be impleaded in the proceedings below. It
might be asked that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber companies of one or more
of the specific terms and conditions of their concession agreements (and this,
petitioners implicitly assume), what will those companies litigate about? The
answer I suggest is that they may seek to dispute the existence of the specific
legal right petitioners should allege, as well as the reality of the claimed factual
nexus between petitioners' specific legal rights and the claimed wrongful acts
or failures to act of public respondent administrative agency. They may also
controvert the appropriateness of the remedy or remedies demanded by
petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the
environment, including the forest cover of our territory, is of extreme
importance for the country. The doctrines set out in the Court's decision issued
today should, however, be subjected to closer examination.
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with preliminary injunction
relates to the power of the incumbent President of the Philippines to propose
amendments to the present Constitution in the absence of the interim National
Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential
Decree No. 991 calling for a national referendum on October 16, 1976 for the
Citizens Assemblies ("barangays") to resolve, among other things, the issues
of martial law, the I . assembly, its replacement, the powers of such
replacement, the period of its existence, the length of the period for tile
exercise by the President of his present powers.1
Twenty days after or on September 22, 1976, the President issued another
related decree, Presidential Decree No. 1031, amending the previous
Presidential Decree No. 991, by declaring the provisions of presidential
Decree No. 229 providing for the manner of voting and canvass of votes in
"barangays" (Citizens Assemblies) applicable to the national referendum-
plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No. 1031
repealed Section 4, of Presidential Decree No. 991, the full text of which
(Section 4) is quoted in the footnote below. 2
On the same date of September 22, 1976, the President issued Presidential
Decree No. 1033, stating the questions to be submitted to the people in the
referendum-plebiscite on October 16, 1976. The Decree recites in its
"whereas" clauses that the people's continued opposition to the convening of
the National Assembly evinces their desire to have such body abolished and
replaced thru a constitutional amendment, providing for a legislative body,
which will be submitted directly to the people in the referendum-plebiscite of
October 16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do you approve the
following amendments to the Constitution? For the purpose of the second
question, the referendum shall have the effect of a plebiscite within the
contemplation of Section 2 of Article XVI of the Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an interim Batasang
Pambansa. Members of the interim Batasang Pambansa which shall not be
more than 120, unless otherwise provided by law, shall include the incumbent
President of the Philippines, representatives elected from the different regions
of the nation, those who shall not be less than eighteen years of age elected
by their respective sectors, and those chosen by the incumbent President from
the members of the Cabinet. Regional representatives shall be apportioned
among the regions in accordance with the number of their respective
inhabitants and on the basis of a uniform and progressive ratio while the
sectors shall be determined by law. The number of representatives from each
region or sector and the, manner of their election shall be prescribed and
regulated by law.
2. The interim Batasang Pambansa shall have the same powers and its
members shall have the same functions, responsibilities, rights, privileges, and
disqualifications as the interim National Assembly and the regular National
Assembly and the members thereof. However, it shall not exercise the power
provided in Article VIII, Section 14(l) of the Constitution.
3. The incumbent President of the Philippines shall, within 30 days from the
election and selection of the members, convene the interim Batasang
Pambansa and preside over its sessions until the Speaker shall have been
elected. The incumbent President of the Philippines shall be the Prime Minister
and he shall continue to exercise all his powers even after the interim Batasang
Pambansa is organized and ready to discharge its functions and likewise he
shall continue to exercise his powers and prerogatives under the nineteen
hundred and thirty five. Constitution and the powers vested in the President
and the Prime Minister under this Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the powers
and functions, and discharge the responsibilities of the regular President
(Prime Minister) and his Cabinet, and shall be subject only to such
disqualifications as the President (Prime Minister) may prescribe. The
President (Prime Minister) if he so desires may appoint a Deputy Prime
Minister or as many Deputy Prime Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise legislative powers until
martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister), there exists a
grave emergency or a threat or imminence thereof, or whenever the interim
Batasang Pambansa or the regular National Assembly fails or is unable to act
adequately on any matter for any reason that in his judgment requires
immediate action, he may, in order to meet the exigency, issue the necessary
decrees, orders or letters of instructions, which shall form part of the law of the
land.
7. The barangays and sanggunians shall continue as presently constituted but
their functions, powers, and composition may be altered by law.
Referenda conducted thru the barangays and under the Supervision of the
Commission on Elections may be called at any time the government deems it
necessary to ascertain the will of the people regarding any important matter
whether of national or local interest.
8. All provisions of this Constitution not inconsistent with any of these
amendments shall continue in full force and effect.
9. These amendments shall take effect after the incumbent President shall
have proclaimed that they have been ratified by I majority of the votes cast in
the referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision and
control of the October 1976 National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD,
father and son, commenced L-44640 for Prohibition with Preliminary Injunction
seeking to enjoin the Commission on Elections from holding and conducting
the Referendum Plebiscite on October 16; to declare without force and effect
Presidential Decree Nos. 991 and 1033, insofar as they propose amendments
to the Constitution, as well as Presidential Decree No. 1031, insofar as it
directs the Commission on Elections to supervise, control, hold, and conduct
the Referendum-Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no
grant to the incumbent President to exercise the constituent power to propose
amendments to the new Constitution. As a consequence, the Referendum-
Plebiscite on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent
Commission on Elections, The Solicitor General principally maintains that
petitioners have no standing to sue; the issue raised is political in nature,
beyond judicial cognizance of this Court; at this state of the transition period,
only the incumbent President has the authority to exercise constituent power;
the referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary
Injunction, docketed as L-44684, was instituted by VICENTE M. GUZMAN, a
delegate to the 1971 Constitutional Convention, asserting that the power to
propose amendments to, or revision of the Constitution during the transition
period is expressly conferred on the interim National Assembly under Section
16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed on
October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO
SALAPANTAN, docketed as L- 44714, to restrain the implementation of
Presidential Decrees relative to the forthcoming Referendum-Plebiscite of
October 16.
These last petitioners argue that even granting him legislative powers under
Martial Law, the incumbent President cannot act as a constituent assembly to
propose amendments to the Constitution; a referendum-plebiscite is untenable
under the Constitutions of 1935 and 1973; the submission of the proposed
amendments in such a short period of time for deliberation renders the
plebiscite a nullity; to lift Martial Law, the President need not consult the people
via referendum; and allowing 15-.year olds to vote would amount to an
amendment of the Constitution, which confines the right of suffrage to those
citizens of the Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I executive agreement, or law may shall be heard and decided by the Supreme
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo
C. Sanidad and Pablito V. Sanidad) possess locus standi to challenge the
constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is
now an ancient rule that the valid source of a stature Presidential Decrees are
of such nature-may be contested by one who will sustain a direct injuries as a
in result of its enforcement. At the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the theory that the
expenditure of public funds by an officer of the State for the purpose of
executing an unconstitutional act constitutes a misapplication of such funds. 4
The breadth of Presidential Decree No. 991 carries all appropriation of Five
Million Pesos for the effective implementation of its purposes. 5 Presidential
Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its
provisions. 6 The interest of the aforenamed petitioners as taxpayers in the
lawful expenditure of these amounts of public money sufficiently clothes them
with that personality to litigate the validity of the Decrees appropriating said
funds. Moreover, as regards taxpayer's suits, this Court enjoys that open
discretion to entertain the same or not. 7 For the present case, We deem it
sound to exercise that discretion affirmatively so that the authority upon which
the disputed Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political
one, lying outside the domain of judicial review. We disagree. The amending
process both as to proposal and ratification, raises a judicial question. 8 This
is especially true in cases where the power of the Presidency to initiate the of
normally exercised by the legislature, is seriously doubted. Under the terms of
the 1973 Constitution, the power to propose amendments o the constitution
resides in the interim National Assembly in the period of transition (See. 15,
Transitory provisions). After that period, and the regular National Assembly in
its active session, the power to propose amendments becomes ipso facto the
prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI,
1973 constitution). The normal course has not been followed. Rather than
calling the National Assembly to constitute itself into a constituent assembly
the incumbent President undertook the proposal of amendments and
submitted the proposed amendments thru Presidential Decree 1033 to the
people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity
regularity of the procedure for amendments, written in lambent words in the
very Constitution sought to be amended, raises a contestable issue. The
implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly
purport to have the force and effect of legislation are assailed as invalid, thus
the issue of the validity of said Decrees is plainly a justiciable one, within the
competence of this Court to pass upon. Section 2 (2), Article X of the new
Constitution provides: "All cases involving the constitutionality of a treaty,
Court en banc and no treaty, executive agreement, or law may be declared
unconstitutional without the concurrence of at least ten Members. ..." The
Supreme Court has the last word in the construction not only of treaties and
statutes, but also of the Constitution itself The amending, like all other powers
organized in the Constitution, is in form a delegated and hence a limited power,
so that the Supreme Court is vested with that authorities to determine whether
that power has been discharged within its limits.
Political questions are neatly associated with the wisdom, of the legality of a
particular act. Where the vortex of the controversy refers to the legality or
validity of the contested act, that matter is definitely justiciable or non-political.
What is in the heels of the Court is not the wisdom of the act of the incumbent
President in proposing amendments to the Constitution, but his constitutional
authority to perform such act or to assume the power of a constituent
assembly. Whether the amending process confers on the President that power
to propose amendments is therefore a downright justiciable question. Should
the contrary be found, the actuation of the President would merely be a brutum
fulmen. If the Constitution provides how it may be amended, the judiciary as
the interpreter of that Constitution, can declare whether the procedure followed
or the authority assumed was valid or not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory of
non-justiciability, that the question of the President's authority to propose
amendments and the regularity of the procedure adopted for submission of the
proposal to the people ultimately lie in the judgment of the A clear Descartes
fallacy of vicious circle. Is it not that the people themselves, by their sovereign
act, provided for the authority and procedure for the amending process when
they ratified the present Constitution in 1973? Whether, therefore, the
constitutional provision has been followed or not is the proper subject of
inquiry, not by the people themselves of course who exercise no power of
judicial but by the Supreme Court in whom the people themselves vested that
power, a power which includes the competence to determine whether the
constitutional norms for amendments have been observed or not. And, this
inquiry must be done a prior not a posterior i.e., before the submission to and
ratification by the people.
Indeed, the precedents evolved by the Court or, prior constitutional cases
underline the preference of the Court's majority to treat such issue of
Presidential role in the amending process as one of non-political impression.
In the Plebiscite Cases, 11 the contention of the Solicitor General that the issue
on the legality of Presidential Decree No. 73 "submitting to the Pilipino people
(on January 15, 1973) for ratification or rejection the Constitution of the
Republic of the Philippines proposed by the 1971 Constitutional Convention
and appropriating fund s therefore "is a political one, was rejected and the
Court unanimously considered the issue as justiciable in nature. Subsequently
in the Ratification Cases 12involving the issue of whether or not the validity of
Presidential Proclamation No. 1102. announcing the Ratification by the Filipino
people of the constitution proposed by the 1971 Constitutional Convention,"
partakes of the nature of a political question, the affirmative stand of' the
Solicitor General was dismissed, the Court ruled that the question raised is
justiciable. Chief Justice Concepcion, expressing the majority view, said, Thus,
in the aforementioned plebiscite cases, We rejected the theory of the
respondents therein that the question whether Presidential Decree No. 73
calling a plebiscite to be held on January 15, 1973, for the ratification or
rejection of the proposed new Constitution, was valid or not, was not a proper
subject of judicial inquiry because, they claimed, it partook of a political nature,
and We unanimously declared that the issue was a justiciable one. With
Identical unanimity. We overruled the respondent's contention in the 1971
habeas corpus cases, questioning Our authority to determine the constitutional
sufficiency of the factual bases of the Presidential proclamation suspending
the privilege of the writ of habeas corpus on August 21, 1971, despite the
opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs.
Castaneda, insofar as it adhered to the former case, which view We,
accordingly, abandoned and refused to apply. For the same reason, We did
not apply and expressly modified, in Gonzales vs. Commission on Elections,
the political-question theory adopted in Mabanag vs. Lopez Vito." 13 The return
to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor
General, was decisively refused by the Court. Chief Justice Concepcion
continued: "The reasons adduced in support thereof are, however,
substantially the same as those given in support on the political question
theory advanced in said habeas corpus and plebiscite cases, which were
carefully considered by this Court and found by it to be legally unsound and
constitutionally untenable. As a consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature and effect of a
stare decisis which gained added weight by its virtual reiteration."
II
The amending process as laid out in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution
may be proposed by the National Assembly upon a vote of three-
fourths of all its Members, or by a constitutional convention. (2) The
National Assembly may, by a vote of two-thirds of all its Members, call
a constitutional convention or, by a majority vote of all its Members,
submit the question of calling such a convention to the electorate in
an election.
SECTION 2. Any amendment to, or revision of, this Constitution shall
be valid when ratified by a majority of the votes cast in a plebiscite
which shall be held not later than three months after the approval of
such amendment or revision.
In the present period of transition, the interim National Assembly instituted in
the Transitory Provisions is conferred with that amending power. Section 15 of
the Transitory Provisions reads:
SECTION 15. The interim National Assembly, upon special call by the
interim Prime Minister, may, by a majority vote of all its Members,
propose amendments to this Constitution. Such amendments shall
take effect when ratified in accordance with Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life of the
nation, i.e., period of normalcy and period of transition. In times of normally,
the amending process may be initiated by the proposals of the (1) regular
National Assembly upon a vote of three-fourths of all its members; or (2) by a
Constitutional Convention called by a vote of two-thirds of all the Members of
the National Assembly. However the calling of a Constitutional Convention
may be submitted to the electorate in an election voted upon by a majority vote
of all the members of the National Assembly. In times of transition,
amendments may be proposed by a majority vote of all the Members of the
National Assembly upon special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the incumbent
President is vested with that prerogative of discretion as to when he shall
initially convene the interim National Assembly. Speaking for the majority
opinion in that case, Justice Makasiar said: "The Constitutional Convention
intended to leave to the President the determination of the time when he shall
initially convene the interim National Assembly, consistent with the prevailing
conditions of peace and order in the country." Concurring, Justice Fernandez,
himself a member of that Constitutional Convention, revealed: "(W)hen the
Delegates to the Constitutional Convention voted on the Transitory Provisions,
they were aware of the fact that under the same, the incumbent President was
given the discretion as to when he could convene the interim National
Assembly; it was so stated plainly by the sponsor, Delegate Yaneza; as a
matter of fact, the proposal that it be convened 'immediately', made by
Delegate Pimentel (V) was rejected. The President's decision to defer the
convening of the interim National Assembly soon found support from the
people themselves. In the plebiscite of January 10-15, 1973, at which the
ratification of the 1973 Constitution was submitted, the people voted against
the convening of the interim National Assembly. In the referendum of July 24,
1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to
withhold the convening of the interim National Assembly. Again, in the
referendum of February 27, 1975, the proposed question of whether the
interim National Assembly shall be initially convened was eliminated, because
some of the members of Congress and delegates of the Constitutional
Convention, who were deemed automatically members of the I interim
National Assembly, were against its inclusion since in that referendum of
January, 1973, the people had already resolved against it.
3. In sensu strictiore, when the legislative arm of the state undertakes the
proposals of amendment to a Constitution, that body is not in the usual function
of lawmaking. lt is not legislating when engaged in the amending process.16
Rather, it is exercising a peculiar power bestowed upon it by the fundamental
charter itself. In the Philippines, that power is provided for in Article XVI of the
1973 Constitution (for the regular National Assembly) or in Section 15 of the
Transitory Provisions (for the National Assembly). While ordinarily it is the
business of the legislating body to legislate for the nation by virtue of
constitutional conferment amending of the Constitution is not legislative in
character. In political science a distinction is made between constitutional
content of an organic character and that of a legislative character'. The
distinction, however, is one of policy, not of law. 17Such being the case,
approval of the President of any proposed amendment is a misnomer 18 The
prerogative of the President to approve or disapprove applies only to the
ordinary cases of legislation. The President has nothing to do with proposition
or adoption of amendments to the Constitution. 19
III
Concentration of Powers in the President during crisis government.
1. In general, the governmental powers in crisis government the Philippines is
a crisis government today are more or less concentrated in the
President. 20 According to Rossiter, "(t)he concentration of government power
in a democracy faced by an emergency is a corrective to the crisis
inefficiencies inherent in the doctrine of the separation of powers. In most free
states it has generally been regarded as imperative that the total power of the
government be parceled out among three mutually independent branches
executive, legislature, and judiciary. It is believed to be destructive of
constitutionalism if any one branch should exercise any two or more types of
power, and certainly a total disregard of the separation of powers is, as
Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In
normal times the separation of powers forms a distinct obstruction to arbitrary
governmental action. By this same token, in abnormal times it may form an
insurmountable barrier to a decisive emergency action in behalf of the state
and its independent existence. There are moments in the life of any
government when all powers must work together in unanimity of purpose and
action, even if this means the temporary union of executive, legislative, and
judicial power in the hands of one man. The more complete the separation of
powers in a constitutional system, the more difficult and yet the more
necessary will be their fusion in time of crisis. This is evident in a comparison
of the crisis potentialities of the cabinet and presidential systems of
government. In the former the all-important harmony of legislature and
executive is taken for granted; in the latter it is neither guaranteed nor to be to
confidently expected. As a result, cabinet is more easily established and more
trustworthy than presidential dictatorship. The power of the state in crisis must
not only be concentrated and expanded; it must also be freed from the normal
system of constitutional and legal limitations. 21 John Locke, on the other hand,
claims for the executive in its own right a broad discretion capable even of
setting aside the ordinary laws in the meeting of special exigencies for which
the legislative power had not provided. 22 The rationale behind such broad
emergency powers of the Executive is the release of the government from "the
paralysis of constitutional restrains" so that the crisis may be ended and
normal times restored.
2. The presidential exercise of legislative powers in time of martial law is now
a conceded valid at. That sun clear authority of the President is saddled on
Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23
The incumbent President of the Philippines shall initially convene the
interim National Assembly and shall preside over its sessions until the
interim Speaker shall have been elected. He shall continue to exercise
his powers and prerogatives under the nineteen hundred and thirty-
five Constitution and the powers vested in the President and the Prime
Minister under this Constitution until the calls upon the interim National
Assembly to elect the interim President and the interim Prime Minister,
 who shall then exercise their respective powers vested by this
Constitution.
All proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part
of the law of the land, and shall remain valid, binding, and effective
even after lifting of martial law or the ratification of this Constitution,
unless modified, revoked, or superseded by subsequent
proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or
repealed by the regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention
delegate, "that the Constitutional Convention, while giving to the President the
discretion when to call the interim National Assembly to session, and knowing
that it may not be convened soon, would create a vacuum in the exercise of
legislative powers. Otherwise, with no one to exercise the lawmaking powers,
there would be paralyzation of the entire governmental
machinery." 24 Paraphrasing Rossiter, this is an extremely important factor in
any constitutional dictatorship which extends over a period of time. The
separation of executive and legislature ordained in the Constitution presents a
distinct obstruction to efficient crisis government. The steady increase in
executive power is not too much a cause for as the steady increase in the
magnitude and complexity of the problems the President has been called upon
by the Filipino people to solve in their behalf, which involve rebellion,
subversion, secession, recession, inflation, and economic crisis-a crisis
greater than war. In short, while conventional constitutional law just confines
the President's power as Commander-in-Chief to the direction of the operation
of the national forces, yet the facts of our political, social, and economic
disturbances had convincingly shown that in meeting the same, indefinite
power should be attributed to tile President to take emergency measures 25
IV
Authority of the incumbent President t to propose amendments to the
Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to
the interim National Assembly during the transition period. However, the initial
convening of that Assembly is a matter fully addressed to the judgment of the
incumbent President. And, in the exercise of that judgment, the President
opted to defer convening of that body in utter recognition of the people's
preference. Likewise, in the period of transition, the power to propose
amendments to the Constitution lies in the interim National Assembly upon
special call by the President (See. 15 of the Transitory Provisions). Again,
harking to the dictates of the sovereign will, the President decided not to call
the interim National Assembly. Would it then be within the bounds of the
Constitution and of law for the President to assume that constituent power of
the interim Assembly vis-a-vis his assumption of that body's legislative
functions? The answer is yes. If the President has been legitimately
discharging the legislative functions of the interim Assembly, there is no reason
why he cannot validly discharge the function of that Assembly to propose
amendments to the Constitution, which is but adjunct, although peculiar, to its
gross legislative power. This, of course, is not to say that the President has
converted his office into a constituent assembly of that nature normally
constituted by the legislature. Rather, with the interim National Assembly not
convened and only the Presidency and the Supreme Court in operation, the
urges of absolute necessity render it imperative upon the President to act as
agent for and in behalf of the people to propose amendments to the
Constitution. Parenthetically, by its very constitution, the Supreme Court
possesses no capacity to propose amendments without constitutional
infractions. For the President to shy away from that actuality and decline to
undertake the amending process would leave the governmental machineries
at a stalemate or create in the powers of the State a destructive vacuum,
thereby impeding the objective of a crisis government "to end the crisis and
restore normal times." In these parlous times, that Presidential initiative to
reduce into concrete forms the constant voices of the people reigns supreme.
After all, constituent assemblies or constitutional conventions, like the
President now, are mere agents of the people .26
2. The President's action is not a unilateral move. As early as the referendums
of January 1973 and February 1975, the people had already rejected the
calling of the interim National Assembly. The Lupong Tagapagpaganap of the
Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga
Barangay, and the Pambansang Katipunan ng mga Barangay, representing
42,000 barangays, about the same number of Kabataang Barangay
organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-
provinces, and 60 cities had informed the President that the prevailing
sentiment of the people is for the abolition of the interim National Assembly.
Other issues concerned the lifting of martial law and amendments to the
Constitution .27 The national organizations of Sangguniang Bayan presently
proposed to settle the issues of martial law, the interim Assembly, its
replacement, the period of its existence, the length of the period for the
exercise by the President of its present powers in a referendum to be held on
October 16 . 28 The Batasang Bayan (legislative council) created under
Presidential Decree 995 of September 10, 1976, composed of 19 cabinet
members, 9 officials with cabinet rank, 91 members of the Lupong
Tagapagpaganap (executive committee) of the Katipunan ng mga
Sangguniang Bayan voted in session to submit directly to the people in a
plebiscite on October 16, the previously quoted proposed amendments to the
Constitution, including the issue of martial law .29 Similarly, the "barangays"
and the "sanggunians" endorsed to the President the submission of the
proposed amendments to the people on October 16. All the foregoing led the
President to initiate the proposal of amendments to the Constitution and the
subsequent issuance of Presidential Decree No, 1033 on September 22, 1976
submitting the questions (proposed amendments) to the people in the National
Referendum-Plebiscite on October 16.
V bearing on the results. The fact that the voting populace are simultaneously
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary state is easily
seen. In the Philippines, a republican and unitary state, sovereignty "resides
in the people and all government authority emanates from them.30 In its fourth
meaning, Savigny would treat people as "that particular organized assembly
of individuals in which, according to the Constitution, the highest power
exists." 31 This is the concept of popular sovereignty. It means that the
constitutional legislator, namely the people, is sovereign 32 In consequence,
the people may thus write into the Constitution their convictions on any subject
they choose in the absence of express constitutional prohibition. 33 This is
because, as Holmes said, the Constitution "is an experiment, as all life is all
experiment." 34 "The necessities of orderly government," wrote Rottschaefer,
"do not require that one generation should be permitted to permanently fetter
all future generations." A constitution is based, therefore, upon a self-limiting
decision of the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to
exercise their sovereign power as constitutional legislator. The proposed
amendments, as earlier discussed, proceed not from the thinking of a single
man. Rather, they are the collated thoughts of the sovereign will reduced only
into enabling forms by the authority who can presently exercise the powers of
the government. In equal vein, the submission of those proposed amendments
and the question of martial law in a referendum-plebiscite expresses but the
option of the people themselves implemented only by the authority of the
President. Indeed, it may well be said that the amending process is a sovereign
act, although the authority to initiate the same and the procedure to be followed
reside somehow in a particular body.
VI
Referendum-Plebiscite not rendered nugatory by the participation of the 15-
year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do
you want martial law to be continued? - is a referendum question, wherein the
15-year olds may participate. This was prompted by the desire of the
Government to reach the larger mas of the people so that their true pulse may
be felt to guide the President in pursuing his program for a New Order. For the
succeeding question on the proposed amendments, only those of voting age
of 18 years may participate. This is the plebiscite aspect, as contemplated in
Section 2, Article XVI of the new Constitution. 36 On this second question, it
would only be the votes of those 18 years old and above which will have valid
asked to answer the referendum question and the plebiscite question does not
infirm the referendum-plebiscite. There is nothing objectionable in consulting
the people on a given issue, which is of current one and submitting to them for
ratification of proposed constitutional amendments. The fear of commingled
votes (15-year olds and 18-year olds above) is readily dispelled by the
provision of two ballot boxes for every barangay center, one containing the
ballots of voters fifteen years of age and under eighteen, and another
containing the ballots of voters eighteen years of age and above. 37 The ballots
in the ballot box for voters fifteen years of age and under eighteen shall be
counted ahead of the ballots of voters eighteen years and above contained in
another ballot box. And, the results of the referendum-plebiscite shall be
separately prepared for the age groupings, i.e., ballots contained in each of
the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A
"referendum" is merely consultative in character. It is simply a means of
assessing public reaction to the given issues submitted to the people foe their
consideration, the calling of which is derived from or within the totality of the
executive power of the President. 39It is participated in by all citizens from the
age of fifteen, regardless of whether or not they are illiterates, feeble-minded,
or ex- convicts . 40 A "plebiscite," on the other hand, involves the constituent
act of those "citizens of the Philippines not otherwise disqualified by law, who
are eighteen years of age or over, and who shall have resided in the
Philippines for at least one year and in the place wherein they propose to vote
for at least six months preceding the election Literacy, property or any other
substantive requirement is not imposed. It is generally associated with the
amending process of the Constitution, more particularly, the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of martial
law stultifies in main the freedom to dissent. That speaks of a bygone fear. The
martial law regime which, in the observation of Justice Fernando, 41 is
impressed with a mild character recorded no State imposition for a muffled
voice. To be sure, there are restraints of the individual liberty, but on certain
grounds no total suppression of that liberty is aimed at. The for the referendum-
plebiscite on October 16 recognizes all the embracing freedoms of expression
and assembly The President himself had announced that he would not
countenance any suppression of dissenting views on the issues, as he is not
interested in winning a "yes" or "no" vote, but on the genuine sentiment of the
people on the issues at hand. 42 Thus, the dissenters soon found their way to
the public forums, voicing out loud and clear their adverse views on the
proposed amendments and even (in the valid ratification of the 1973
Constitution, which is already a settled matter. 43 Even government employees
have been held by the Civil Service Commission free to participate in public
discussion and even campaign for their stand on the referendum-plebiscite
issues. 44
VIII
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not
too short for free debates or discussions on the referendum-plebiscite issues.
The questions are not new. They are the issues of the day. The people have
been living with them since the proclamation of martial law four years ago. The
referendums of 1973 and 1975 carried the same issue of martial law. That
notwithstanding, the contested brief period for discussion is not without
counterparts in previous plebiscites for constitutional amendments. Justice
Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days
were allotted for the publication in three consecutive issues of the Official
Gazette of the women's suffrage amendment to the Constitution before the
scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional
amendment to append as ordinance the complicated Tydings-Kocialskowski
was published in only three consecutive issues of the Official Gazette for 10
days prior to the scheduled plebiscite (Com. Act 492). For the 1940
Constitutional amendments providing for the bicameral Congress, the
reelection of the President and Vice President, and the creation of the
Commission on Elections, 20 days of publication in three consecutive issues
of the Official Gazette was fixed (Com Act No. 517). And the Parity
Amendment, an involved constitutional amendment affecting the economy as
well as the independence of the Republic was publicized in three consecutive
issues of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No.
73)." 45
2. It is worthy to note that Article XVI of the Constitution makes no provision
as to the specific date when the plebiscite shall be held, but simply states that
it "shall be held not later than three months after the approval of such
amendment or revision." In Coleman v. Miller, 46 the United States Supreme
court held that this matter of submission involves "an appraisal of a great
variety of relevant conditions, political, social and economic," which "are
essentially political and not justiciable." The constituent body or in the instant
cases, the President, may fix the time within which the people may act. This is
because proposal and ratification are not treated as unrelated acts, but as
succeeding steps in a single endeavor, the natural inference being that they
are not to be widely separated in time; second, it is only when there is deemed
to be a necessity therefor that amendments are to be proposed, the
reasonable implication being that when proposed, they are to be considered
and disposed of presently, and third, ratification is but the expression of the
approbation of the people, hence, it must be done contemporaneously. 47 In
the words of Jameson, "(a)n alteration of the Constitution proposed today has
relation to the sentiment and the felt needs of today, and that, if not ratified
early while that sentiment may fairly be supposed to exist. it ought to be
regarded as waived, and not again to be voted upon, unless a second time
proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees Nos. 991,
1031 and 1033 political or justiciable?
2. During the present stage of the transition period, and under, the
environmental circumstances now obtaining, does the President possess
power to propose amendments to the Constitution as well as set up the
required machinery and prescribe the procedure for the ratification of his
proposals by the people?
3. Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices
Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz
Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view
that the question posed is justiciable, while Associate Justices Felix V.
Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the
question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative,
while Associate Justices Teehankee and Munoz Palma voted in the negative.
Associate Justice Fernando, conformably to his concurring and dissenting
opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the
proposition that there is concentration of powers in the Executive during
periods of crisis, thus raising serious doubts as to the power of the President
to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a
sufficient and proper submission of the proposed amendments for ratification
by the people. Associate Justices Barredo and Makasiar expressed the hope,
however that the period of time may be extended. Associate Justices
Fernando, Makasiar and Antonio are of the view that the question is political
and therefore beyond the competence and cognizance of this Court, Associate
Justice Fernando adheres to his concurrence in the opinion of Chief Justice
Concepcion in Gonzales vs. COMELEC (21 SCRA 774).Associate Justices
Teehankee and MUNOZ Palma hold that prescinding from the President's lack
of authority to exercise the constituent power to propose the amendments,
etc., as above stated, there is no fair and proper submission with sufficient
information and time to assure intelligent consent or rejection under the
standards set by this Court in the controlling cases of Gonzales, supra, and
Tolentino vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio,
Aquino, Concepcion Jr. and Martin voted to dismiss the three petitions at bar.
For reasons as expressed in his separate opinion, Associate Justice Fernando
concurs in the result. Associate Justices Teehankee and Munoz Palma voted
to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby
dismissed. This decision is immediately executory.
SO ORDERED.
Aquino, J, in the result.
Separate Opinions
CASTRO, C.J.:, concurring:
From the challenge as formulated in the three petitions at bar and the grounds
advanced be the Solicitor General in opposition thereto, as well as the
arguments adduced by the counsels of the parties at the hearing had on
October 7 and 8, 1976, three vital issues readily project themselves as the
centers of controversy, namely:
(1) Is the question of the constitutionality of Presidential Decrees Nos. 991,
1031 and 1033 political or justiciable?
(2) During the present stage of the transition period, and under the
environmental circumstances now obtaining, does the President possess
power to propose amendments to the Constitution as well as set up the
required machineries and prescribe the procedure for the ratification of his
proposals by the people?
(3) Is the submission to the people of the proposed amendments within the
time frame allowed therefor a sufficient and proper, submission"
I
First Issue
The threshold question is not at all one of first impression Specifically on the
matter of proposals to amend the Constitution, this Court, in Mabanag vs.
Lopez Vito (78 Phil. 1), inceptively announced the dictum that-
Proposal to amend the Constitution is a highly political function
performed by the Congress in its sovereign legislative capacity and
committed to its charges by the Constitution itself. The exercise of this
power is even independent of any intervention by the Chief Executive.
If on grounds of expediency scrupulous attention of the judiciary be
needed to safeguard public interest, there is less reason for judicial
inquiry into the validity of a proposal than into that of a ratification.
In time, however, the validity of the said pronouncement was eroded. In the
assessment of the Court itself-
The force of this precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581, March 4
and 14, 1949), Tanada vs. Cuenco (L-10520, February 28, 1957), and Macias
vs. Commission on Elections (L-18684, September 14, 1961).
xxx xxx xxx
In short, the issue whether or not a Resolution of Congress-acting as a
constituent assembly-violates the Constitution is essentially justiciable, not
political, and, hence, subject to judicial review, and, to the extent this view may
be inconsistent with the stand taken in Mabanag vs. Lopez Vito the latter
should be deemed modified accordingly. The Members of the Court are
unanimous on this point." (Gonzales vs. Commission on Elections, et al, L-
28196, November 9, 1967, 21 SCRA 774, 786-787).
The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have
been completed when, in Javellana vs. Secretary, et al. (L-36142, March 3l,
1973, 50 SCRA 30), six members of the Court concurred in the view that the
question of whether the 1973 Constitution was ratified in accordance with the
provisions of Article XV (Amendments) of the 1935 Constitution is inherently
and essentially justiciable.
As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103
Phil. 1051)-
... the term 'political question' connotes, in legal parlance,
what it means in ordinarily parlance, namely, a question of
policy in matters concerning the government of a State, as a
body politic. In other words, in the language of Corpus Juris
Secundum (supra), it refers to 'those questions which, under
the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive
branch of the government.' It is concerned with issues
dependent upon the wisdom, not legality, of a particular
measure.'
Accordingly, when the grant of power is qualified, conditional or subject to
limitations, the issue on whether or not the prescribed qualifications or
conditions have been met, or the limitations respected, is justiciable or non-
political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or
limitations - particularly those prescribed or imposed by the Constitution -
would be set at naught." (Javellana vs. Executive Secretary, supra).
So it is in the situation here presented. The basic issue is the constitutional
validity of the presidential acts of proposing amendments to the Constitution
and of calling a referendum-plebiscite for the ratification of the proposals
made. Evidently, the question does not concern itself with the wisdom of the
exercise of the authority claimed or of the specific amendments proposed.
Instead the inquiry vel non is focused solely on the existence of the said power
in the President - a question purely of legality determinable thru interpretation
and construction of the letter and spirit of the Constitution by the Court as the
final arbiter in the delineation of constitutional boundaries and the allocation of
constitutional powers.
For the Court to shun cognizance of the challenge herein presented, especially
in these parlous years, would be to abdicate its constitutional powers, shirk its
constitutional responsibility, and deny the people their ultimate recourse for
judicial determination.
I have thus no hesitancy in concluding that the question here presented is well
within the periphery of judicial inquiry.
II
Second Issue
The main question stands on a different footing; it appears unprecedented
both here and elsewhere. Its solution, I believe, can be found and unraveled
only by a critical assessment of the existing legal order in the light of the
prevailing political and factual milieu.
To be sure, there is an impressive array of consistent jurisprudence on the
proposition that, normally or under normal conditions, a Constitution may be
amended only in accord with the procedure set forth therein. Hence, if there
be any such prescription for the amendatory process as invariable there is
because one of the essential parts of a Constitution is the so-called
"constitution of sovereignty" which comprises the provision or provisions on
the modes in accordance with which formal changes in the fundamental law
may be effected the same would ordinarily be the controlling criterion for the
validity of the amendments sought.
Unfortunately, however, during the present transition period of our political
development, no express provision is extant in the Constitution regarding the
agency or agent by whom and the procedure by which amendments thereto
may be proposed and ratified fact overlooked by those who challenge the
validity of the presidential acts in the premises. This is so because there are
at least two distinctly in the transition from the old system of government under
the 1935 Constitution to the new one established by the 1973 Constitution.
The first stage comprises the period from the effectivity of the Constitution on
January 17, 1973 to the time the National Assembly is convened by the
incumbent President and the interim President and the interim Prime Minister
are chosen Article XVII, Sections 1 and 3[1]. The existence of this stage as an
obvious fact of the nation's political life was recognized by the Court in Aquino
vs. Commission on Elections, et al. (L-40004, January 31, 1975, 62 SCRA
275), when it rejected the claim that, under the 1973 Constitution, the
President was in duty bound to convene the interim National Assembly soon
after the Constitution took effect.
The second stage embraces the period from the date the interim National
Assembly is convened to the date the Government described in Articles VII to
IX of the Constitution is inaugurated, following the election of the members of
the regular National Assembly (Article XVII, Section 1) and the election of the
regular President and Prime Minister,. This is as it should be because it is
recognized that the President has been accorded the discretion to determine
when he shall initially convene the interim National Assembly, and his decision
to defer the convocation thereof has found overwhelming support by the
sovereign people in two previous referenda, therein giving reality to an
interregnum between the effectivity of the Constitution and the initial
convocation of the interim National Assembly, which interregnum, as
aforesaid, constitutes the first stage in the transition period.
Against this factual backdrop, it is readily discernible that neither of the two
sets of provisions embodied in the Constitution on the amendatory process
applied during the said first stage. Thus, Section 15, Article XVII (Transitory
Provisions) provides-
"Sec. 15. The interim National Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of all its Members, propose amendments to
this Constitution. Such amendments shall take effect when ratified in
accordance with Article Sixteen hereof."
Patently, the reference to the "interim National Assembly" and the "interim
Prime Minister" limits the application thereof to the second stage of the
transition period, i.e.,., after the interim? National Assembly shall have been
convened and the interim Prime Minister shall have been chosen.
Upon the other hand, the provisions of Article XVI (Amendments), to wit-
SECTION 1. (1) Any amendment to, or revision of, this Constitution
may be proposed by the National Assembly upon a vote of three-
fourths of all its Members, or by a constitutional convention.
(2) The National Assembly may, by a vote of two-thirds of all its
Members, call a constitutional convention or, by a majority vote of all
its Members, submit the question of ceiling such a convention to the
electorate in an election.
SEC. 2. Any amendment to, or revision of, this Constitution shall be
valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not later than three months after the approval of such
amendment or revision.
unequivocally contemplate amendments after the regular Government shall
have become fully operative, referring as they do to the National Assembly
which will come into being only at that time.
In the face of this constitutional hiatus, we are confronted with the dilemma
whether amendments to the Constitution may be effected during the aforesaid
first stage and, if in the affirmative, by whom and in what manner such
amendments may be proposed and ratified.
Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not
being a mere declaration of the traditions of a nation but more the embodiment
of a people's hopes and aspirations, its strictures are not unalterable. They
are, instead, dynamic precepts intended to keep in stride with and attuned to
the living social organism they seek to fashion and govern. If it is conceded
that "the political or philosophical aphorism of one generation is doubted by
the next and entirely discarded by the third," then a Constitution must be able
to adjust to the changing needs and demands of society so that the latter may
survive, progress and endure. On these verities, there can be no debate.
During the first stage of the transition period in which the Government is at
present - which is understandably the most critical - the need for change may
be most pressing and imperative, and to disavow the existence of the right to
amend the Constitution would be sheer political heresy. Such view would deny
the people a mechanism for effecting peaceful change, and belie the organic
conception of the Constitution by depriving it of its means of growth. Such a
result obviously could not have been intended by the framers of the
fundamental law.
It seems, however, that the happenstance that the first period would come to
pass before the convocation of the interim National Assembly was not
anticipated, hence, the omission of an express mandate to govern the said
situation in so far as amendments are concerned. But such omission through
inadvertence should not, because it cannot, negate the sovereign power of the
people to amend the fundamental charter that governs their lives and their
future and perhaps even the very survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions on the
amendatory process that the intent was, instead, to provide a simpler and more
expeditious mode of amending the Constitution during the transition period.
For, while under Article XVI thereof, proposals for amendment may be made
directly by the regular National Assembly by a vote of at least three-fourths of
all its members, under Section 15 of Article XVII, a bare majority vote of all the
members of the National Assembly would suffice for the purpose. The
relaxation and the disparity in the vote requirement are revealing. The can only
signify a recognition of the need to facilitate the adoption of amendments
during the second stage of the transition period so that the interim National
Assembly will be able, in a manner of speaking, to iron out the kinks in the new
Constitution, remove imperfections therein, and provide for changed or
changing circumstances before the establishment of the regular Government.
In this contest, therefore, it is inutile speculation to assume that the
Constitution was intended to render impotent or ar the effectuation of needful
change at an even more critical period - the first stage. With greater reason,
therefore, must the right and power to amend the Constitution during the first
stage of te transition period be upheld, albeit within its express and implied
constraints.
Neither can it be successfully argued, in the same context and in the present
posture, that the Constitution may be amended during the said first stage only
by convening the interim National Assembly. That is to say and require that he
said stage must first be brought to an end before any amendment may be
proposed and ratified. Settled jurisprudence does not square with such a
proposition. As aptly noted in Aquino vs. Commission on Elections, et al.,
supra, the framers of the Constitution set no deadline for the convening of the
interim National Assembly because they could not have foreseen how long the
crises which impelled the proclamation and justify the continued state of
martial law would last. Indeed, the framers committed to the sound judgment
is not subject to judicial review, save possibly to determine whether
arbitrariness has infected such exercise; absent such a taint, the matter is
solely in the keeping of the President. To thus content that only by convening
the interim National Assembly may the Constitution be amended at this time
would effectively override the judgement vested in the President, even in
default of any he has acted arbitrarily or gravely abuse his discretion.
Furthermore, to sustain such a contention would not only negate the mandate
so resoundingly expressed by the people in two national referenda against the
immediate convening of the interim National Assembly, but as well deride their
overwhelming approval of the manner in which the President has exercised
the legislative power to issue proclamations, orders, decrees and instructions
having the stature and force of law.
Given the constitutional stalemate or impasse spawned by these supervening
developments, the logical query that compels itself for resolution is: By whom,
then, may proposals for the amendment of the Constitution be made and in
what manner may said proposals be ratified by the people?
It is conventional wisdom that, conceptually, the constituent power is not to be
confuse with legislative power in general because the prerogative to propose
amendments to the Constitution is not in any sense embraced within the ambit
of ordinary law-making. Hence, there is much to recommend the proposition
that, in default of an express grant thereof, the legislature - traditionally the
delegated repository thereof - may not claim it under a general grant of
legislative authority. In the same vein, neither would it be altogether
unassailable to say that because by constitutional tradition and express
allocation the constituent power under the Constitution is locate in the law-
making agency and at this stage of the transition period the law-making
authority is firmly recognized as being lodged in the President, the said
constituent power should now logically be in the hands of te President who
may thus exercise it in place of the interim National Assembly. Instead,, as
pointed out in Gonzales vs. Commission on Elections, et al., supra, the power
to amend the Constitution or to propose amendments thereto
... is part of the inherent powers of the people - as the repository of
sovereignty in a republican state, such as ours - t o make, and, hence,
to amend their own Fundamental Law.
As such, it is undoubtedly a power that only the sovereign people, either
directly by themselves or through their chosen delegate, can wield. Since it
has been shown that the people, inadvertently or otherwise, have not
delegated that power to inadvertently or otherwise, have not delegated that
power to any instrumentality during the current stage of our hegira from crisis
to normalcy, it follows of necessity that the same remains with them for them
to exercise in the manner they see fit and through the agency they choose.
And, even if it were conceded that - as it is reputedly the rule in some
jurisdictions - a delegation of the constituent authority amounts to a complete
divestiture from the people of the power delegated which they may not
thereafter unilaterally reclaim from the delegate, there would be no violence
donde to such rule, assuming it to be applicable here, inasmuch as that power,
under the environmental circumstance adverted to, has not been delegated to
anyone in the first place. The constituent power during the first stage of the
transition period belongs to and remains with the people, and accordingly may
be exercised by them - how and when - at their pleasure.
At this juncture, a flashback to the recent and contemporary political ferment
in the country proves revelatory. The people, shocked and revolted by the
"obvious immorality" of the unabashed manner by which the delegates to the
Constitutional Convention virtually legislated themselves into office as ipso
facto members of the interim National Assembly by the mere fiat of voting for
the transitory provisions of the Constitution. and the stark reality that the
unwieldy political monstrosity that the interim Assembly portended to be would
have proven to be a veritable drain on the meager financial resources of a
nation struggling for survival, have unequivocally put their foot down, as it
were, on the convocation thereof. But this patently salutary decision of the
people proved to be double-edged. It likewise bound the political machinery of
the Government in a virtual straight-jacket and consigned the political evolution
of the nation into a state of suspended animation. Faced with the ensuing
dilemma, the people understandably agitated for a solution. Through
consultations in the barangays and sanggunian assemblies, the
instrumentalities through which the people's voice is articulated in the unique
system of participatory democracy in the country today, the underpinnings for
the hastening of the return to constitutional normalcy quickly evolved into an
overwhelming sentiment to amend the Constitution in order to replace the
discredited interim National Assembly with what the people believe will be an
appropriate agency to eventually take over the law-making power and thus
pave the way for the early lifting of martial rule. In pursuit of this sentiment, and
to translate its constraints into concrete action, the Pambansang Katipunan ng
Barangay, the Pambansang Katipunan ng mga Kabataang Barangay, the
Lupong Tagapagpaganap of the Katipunan ng mga Barangay, the
Pambansang Katipunan ng mga Kabataang Barangay the Lupong
Tagapagpaganap of the Katipunan ng mga Sanggunian, and finally the
Batasang Bayan, to a man and as one voice, have come forward with definitive
proposals for the amendment of the Constitution, and, choosing the President
the only political arm of the State at this time through which that decision could
be implemented and the end in view attained as their spokesman, proposed
the amendments under challenge in the cases at bar.
In the light of this milieu and its imperatives, one thing is inescapable: the
proposals now submitted to the people for their ratification in the forthcoming
referendum-plebiscite are factually not of the President; they are directly those
of the people themselves speaking thru their authorized instrumentalities. The
President merely formalized the said proposals in Presidential Decree No.
1033. It being conceded in all quarters that sovereignty resides in the people
and it having been demonstrated that their constituent power to amend the
Constitution has not been delegated by them to any instrumentality of the
Government during the present stage of the transition period of our political
development, the conclusion is ineluctable that their exertion of that residuary
power cannot be vulnerable to any constitutional challenge as being ultra vires.
Accordingly, without venturing to rule on whether or not the President is vested
with constituent power as it does not appear necessary to do so in the
premises the proposals here challenged, being acts of the sovereign people
no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the
concomitant authority to call a plebiscite and to appropriate funds therefor is
even less vulnerable not only because the President, in exercising said
authority has acted as a mere alter ego of the people who made the proposals,
but likewise because the said authority is legislative in nature rather than
constituent.
III
Third Issue
Little need be said of the claimed insufficiency and impropriety of the
submission of the proposed amendments for ratification from the standpoint of
time. The thesis cannot be disputed that a fair submission presupposes an
adequate time lapse to enable the people to be sufficiently enlightened on the
merits or demerits of the amendments presented for their ratification or
rejection. However, circumstances there are which unmistakably
demonstrated that the is met. Even if the proposal appear to have been
formalized only upon the promulgation of Presidential Decree No. 1033 on
September 22, 1976, they are actually the crystallization of sentiments that for
so long have preoccupied the minds of the people and their authorized
representatives, from the very lowest level of the political hierarchy. Hence,
unlike proposals emanating from a legislative body, the same cannot but be
said to have been mulled over, pondered upon, debated, discussed and
sufficiently understood by the great masses of the nation long before they
ripened into formal proposals.
Besides. it is a fact of which judicial notice may well be taken that in the not so
distant past when the 1973 Constitution was submitted to the people for
ratification, an all-out campaign, in which all the delegates of the Constitutional
Convention reportedly participated, was launched to acquaint the people with
the ramifications and working of the new system of government sought to be
inaugurated thereunder. It may thus well be assumed that the people in
general have since acquired, in the least, a working knowledge of the entirety
of the Constitution. The changes now proposed the most substantial of which
being merely the replacement of the interim National assembly with another
legislative arm for the Government during the transition period until the regular
National Assembly shall have been constituted do not appear to be of such
complexity as to require considerable time to be brought home to the full
understanding of the people. And, in fact, the massive and wide-ranging
informational and educational campaign to this end has been and still is in full
swing, with all the media the barangay, the civic and sectoral groups, and even
the religious all over the land in acting and often enthusiastic if not frenetic
involvement.
Indeed, when the people cast their votes on October 16, a negative vote could
very well mean an understanding of the proposals which they reject; while an
affirmative vote could equally be indicative Of such understanding and/or an
abiding credence in the fidelity with which the President has kept the trust they
have confided to him as President and administrator of martial rule
IV
Conclusion
It is thus my considered view that no question viable for this court to pass
judgment upon is posed. Accordingly, I vote for the outright dismissal of the
three petitions at bar.
FERNANDO, J., concurring and dissenting:
These three petitions, the latest in a series of cases starting from Planas v.
Commission on Elections continuing with the epochal resolution in Javellana
v. Executive Secretary and followed successively in three crucial decisions,
Aquino v. Ponce Enrile Aquino v. Commission on Elections, and Aquino v
Military Commission, 5manifest to the same degree the delicate and awesome
character of the function of judicial review. While previous rulings supply
guidance and enlightenment, care is to be taken to avoid doctrinaire rigidity
unmindful of altered circumstances and the urgencies of the times. It is
inappropriate to resolve the complex problems of a critical period without full
awareness of the consequences that flow from whatever decision is reached.
Jural norms must be read in the context of social facts, There is need therefore
of adjusting inherited principles to new needs. For law, much more so
constitutional law, is simultaneously a reflection of and a force in the society
that it controls. No quality then can be more desirable in constitutional
adjudication than that intellectual and imaginative insight which goes into the
heart of the matter. The judiciary must survey things as they are in the light of
what they must become It must inquire into the specific problem posed not
only in terms of the teaching of the past but also of the emerging political and
legal theory, especially so under a leadership notable for its innovative
approach to social problems and the vigor of its implementation. This, on the
one side. It must equally be borne in mind through that this Court must be
conscious of the risk inherent in its being considered as a mere subservient
instrument of government policy however admittedly salutary or desirable.
There is still the need to demonstrate that the conclusion reached by it in cases
appropriate for its determination has support in the law that must be applied.
To my mind that was the norm followed, the conclusion reached being that the
three petitions be dismissed. I am in agreement. It is with regret however that
based on my reading of past decisions, both Philippine and American, and
more specifically my concurring opinion in Aquino v. Ponce Enrile, I must
dissent from the proposition set forth in the able and scholarly opinion of
Justice Martin that there is concentration of power in the President during a
crisis government. Consequently, I cannot see my way clear to accepting the
view that the authority to propose amendments is not open to question. At the
very least, serious doubts could be entertained on the matter.
1. With due respect then, I have to dissociate myself from my brethren who
would rule that governmental powers in a crisis government, following
Rossiter, "are more or less concentrated in the President." Adherence to my
concurring and dissenting opinion in Aquino v. Ponce Enrile leaves me no
choice.
It must be stated at the outset that with the sufficiency of doctrines supplied by
our past decisions to point the way to what I did consider the appropriate
response to the basic issue raised in the Aquino and the other habeas corpus
petitions resolved jointly, it was only in the latter portion of my opinion that
reference was made to United States Supreme Court pronouncements on
martial law, at the most persuasive in character and rather few in number "due
no doubt to the, absence in the American Constitution of any provision
concerning it." 7 It was understandable then that it was only after the landmark
Ex parte Milligan case, that commentators like Cooley in 1868 and Watson in
1910 paid attention, minimal by that, to the subject." It was next set forth that
in the works on American constitutional law published in this century specially
after the leading cases of cases Sterling v. Constant in and Duncan v.
Kahanamoku, "there was a fuller treatment of the question of martial law While
it is the formulation of Willoughby that for me is most acceptable, my opinion
did take note that another commentator, Burdick, came out earlier with a
similar appraisal. 10 Thus: "So called martial law, except in occupied territory
of an enemy is merely the calling in of the aid of military forces by the
executive, who is charged with the enforcement of the law, with or without
special authorization by the legislature. Such declaration of martial law does
not suspend the civil law, though it may interfere with the exercise of one's
ordinary rights. The right to call out the military forces to maintain order and
enforce the law is simply part of the Police power, It is only justified when it
reasonably appears necessary, and only justifies such acts as reasonably
appear necessarily to meet the exigency, including the arrest, or in extreme
cases the. killing of those who create the disorder or oppose the authorities.
When the exigency is over the members of the military forces are criminally
and civilly habit for acts done beyond the scope of reasonable necessity. When
honestly and reasonably coping with a situation of insurrection or riot a
member of the military forces cannot be made liable for his acts, and persons
reasonably arrested under such circumstances will not, during the insurrection
or riot, be free by writ of habeas corpus." 11 When the opinion cited
Willoughby's concept of martial law, stress was laid on his being "Partial to the
claims of liberty."12 This is evident in the explicit statement from his work
quoted by me: "There is, then, strictly speaking, no such thing in American law
as a declaration of martial law whereby military law is substituted for civil law.
So-called declarations of martial law are, indeed, often made but their legal
effect goes no further than to warn citizens that the military powers have been
called upon by the executive to assist him in the maintenance of law and order,
and that, while the emergency lasts, they must, upon pain of arrest and
punishment not commit any acts which will in any way render more difficult the
restoration of order and the enforcement of law. Some of the authorities stating
substantially this doctrine are quoted in the footnote below Nor did I stop there.
The words of Willis were likewise cited: "Martial law proper, that is, military law
in case of insurrection, riots, and invasions, is not a substitute for the civil law,
but is rather an aid to the execution of civil law. Declarations of martial law go
no further than to warn citizens that the executive has called upon the military
power to assist him in the maintenance of law and order. While martial law is
in force, no new powers are given to the executive and no civil rights of the
individual, other than the writ of habeas corpus, are suspended. The relations
between the citizen and his stature unchanged." 14
The conclusion reached by me as to the state of American federal law on the
question of martial law was expressed thus: 4'1 It is readily evident that even
when Milligan supplied the only authoritative doctrine, Burdick and Willoughby
did not ignore the primacy of civil liberties. Willis wrote after Sterling. It would
indeed be surprising if his opinion were otherwise. After Duncan, such an
approach becomes even more strongly fortified. Schwartz, whose treatise is
the latest to be published, has this summary of what he considers the present
state of American law: 'The Milligan and Duncan cases show plainly that
martial law is the public law of necessity. Necessities alone calls it forth,
necessity justifies its exercise; and necessities measures the extended degree
to which it may be It is, the high Court has affirmed, an unbending rule of law
that the exercise of military power, where the rights of the citizen are
concerned, may, never be pushed beyond what the exigency requires. If
martial law rule survive the necessities on which alone it rests, for even a single
minute it becomes a mere exercise of lawless violence.' Further: Sterling v.
Constantin is of basic importance. Before it, a number of decisions, including
one the highest Court, went or on the theory that the executive had a free hand
in taking martial law measures. Under them, it has been widely supposed that
in proclamation was so far conclusive that any action taken under it was
immune from judicial scrutiny. Sterling v. Constantin definitely discredits these
earlier decisions and the doctrine of conclusiveness derived from them. Under
Sterling v. Constantin, where martial law measures impinge upon personal or
property rights-normally beyond the scope of military power, whose
intervention is lawful only because an abnormal Actuation has made it
necessary the executive's ipse dixit is not of itself conclusive of the
necessity.'" 15
There was likewise an effort on my part to show what for me is the legal effect
of martial law being expressly provided for in the Constitution rather than being
solely predicated on the common law power based on the urgent need for it
because of compelling circumstances incident to the state of actual clash of
arms: "It is not to be lost sight of that the basis for the declaration of martial
law in the Philippines is not mere necessity but an explicit constitutional
provision. On the other hand, Milligan, which furnished the foundation for
Sterling and Duncan had its roots in the English common law. There is
pertinence therefore in ascertaining its significance under that system.
According to the noted English author, Dicey: 'Martial law,' in the proper sense
of that term, , in which - it means the suspension of ordinary law and the
temporary government of a country or parts of it be military tribunals, is
unknown to the law of England. We have nothing equivalent to what is called
in France the "Declaration of the State of Siege," under which the authority
ordinarily vested in the civil power for the maintenance of order and police
passes entirely to the army (autorite militaire). This is an unmistakable proof
of the permanent supremacy of the law under our constitution. There was this
qualification: 'Martial law is sometimes employed as a name for the common
law right of the Crown and its servants to repel force by force in the case of
invasion, insurrection, riot, or generally of any violent resistance to the law.
This right, or power, is essential to the very existence of orderly government,
and is most assuredly recognized in the most ample manner by the law of
England. It is a power which has in itself no special connection with the
existence of an armed force. The Crown has the right to put down breaches of
the peace. Every subject, whether a civilian or a soldier, whether what is called
a servant of the government,' such for example as a policeman, or a person in
no way connected with the administration, not only has the right, but is, as a
matter of legal duty, bound to assist in putting down breaches of the peace.
No doubt policemen or soldiers are the persons who, as being specially
employed in the maintenance of order, are most generally called upon to
suppress a riot, but it is clear that all loyal subjects are bound to take their part
in the suppression of riots." 16
Commitment to such an approach results in my inability to subscribe to the
belief that martial law in terms of what is provided both in the 1935 and the
present Constitution, affords sufficient justification for the concentration of
powers in the Executive during periods of crisis. The better view, considering
the juristic theory on which our fundamental law rests is that expressed by
Justice Black in Duncan v. Kahanamoku: "Legislatures and courts are not
merely cherished American institutions; they are indispensable to our
government. 17 If there has been no observance of such a cardinal concept at
the present, it is due to the fact that before the former Congress could meet in
regular session anew, the present Constitution was adopted, abolishing it and
providing for an interim National Assembly, which has not been
convened. 18 So I did view the matter.
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference
was made to the first chapter on his work on Constitutional Dictatorship where
he spoke of martial rule as "a device designed for use in the crisis of invasion
or rebellion. It may be most precisely defined as an extension of military
government to the civilian population, the substitution of the will of a military
commander for the will of the people's elected government." 19Since, for me at
least, the Rossiter characterization of martial law has in it more of the common
law connotation, less than duly mindful of the jural effects of its inclusion in the
Constitution itself as a legitimate device for coping with emergency conditions
in times of grave danger, but always subject to attendant limitations in
accordance with the fundamental postulate of a charter's supremacy, I felt
justified in concluding: "Happily for the Philippines, the declaration of martial
law lends itself to the interpretation that the Burdick, Willoughby, Willis,
Schwartz formulations paying due regard to the primacy of liberty possess
relevance. lt cannot be said that the martial rule concept of Rossiter,
latitudinarian in scope, has been adopted, even on the assumption that it can
be reconciled with our Constitution. What is undeniable is that President
Marcos has repeatedly maintained that Proclamation No. 1081 was precisely
based on the Constitution and that the validity of acts taken there under could
be passed upon by the Supreme court. For me that is quite reassuring,
persuaded as I am likewise that the week- of Rossiter is opposed to the
fundamental concept of our polity, which puts a premium on freedom."20
3. Candor and accuracy compel the admission that such a conclusion his to
be qualified. For in the opinion of the Court in the aforecited Aquino v.
Commission on Elections, penned by Justice Makasiar, the proposition was
expressly affirmed "that as Commander-in-Chief and enforcer or administrator
of martial law, the incumbent President of the Philippines can reclamations,
orders and decrees during the period Martial Law essential to the security and
preservation of the Republic, to the defense of the political and social liberties
of the people and to the institution of reforms to prevent the resurgence of
rebellion or insurrection or secession or the threat thereof as well as to meet
the impact of a worldwide recession, inflation or economic crisis which
presently threatens all nations including highly developed countries." 21 To that
extent, Rossiter's view mainly relied upon, now possesses Juristic significant
in this jurisdiction. What, for me at least, gives caused for concern is that with
the opinion of the Court this intrusion of what I would consider an alien element
in the limited concept of martial law as set forth in the Constitution would be
allowed further incursion into the corpus of the law, with the invocation of the
view expressed in the last chapter of his work approving tile "concentration of
governmental power in a democracy [as] a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of powers." 22 It is to the credit of the
late Professor Rossiter as an objective scholar that in the very same last
chapter, just three pages later, he touched explicitly on the undesirable aspect
of a constitutional dictatorship. Thus: "Constitutional Dictatorship is a
dangerous thing. A declaration of martial law or the passage of an enabling
act is a step which must always be feared and sometimes bitterly resisted, for
it is at once an admission of the incapacity of democratic institutions to defend
the order within which they function and a too conscious employment of
powers and methods long ago outlawed as destructive of constitutional
government. Executive legislation, state control of popular liberties, military
courts, and arbitrary executive action were governmental features attacked by
the men who fought for freedom not because they were inefficient or
unsuccessful, but because they were dangerous and oppressive. The
reinstitution of any of these features is a perilous matter, a step to be taken
only when the dangers to a free state will be greater if the dictatorial institution
is not adopted." 23
4. It is by virtue of such considerations that I find myself unable to share the
view of those of my brethren who would accord recognition to the Rossiter
concept of concentration of governmental power in the Executive during
periods of crisis. This is not to lose sight of the undeniable fact that in this
country through the zeal, vigor, and energy lavished on projects conducive to
the general welfare, considerable progress has been achieved under martial
rule. A fair summary may be found in a recent address of the First Lady before
the delegates to the 1976 international Monetary Fund-World Bank Joint
Annual Meeting: "The wonder is that so much has been done in so brief a time.
Since September 1972, when President Marcos established the crisis
government, peace and order have been restored in a country once avoided
as one of the most unsafe in the world. We have liberated millions of Filipino
farmers from the bondage of tenancy, in the most vigorous and extensive
implementation of agrarian reform." 24 Further, she said: "A dynamic economy
has replaced a stagnant order, and its rewards are distributed among the
many, not hoarded by a few. Our foreign policy, once confined by fear and
suspicion to a narrow alley of self-imposed isolation, now travels the broad
expressways of friendship and constructive interaction with the whole world,
these in a new spirit of confidence and self-reliance. And finally, forced to work
out our own salvation, the Filipino has re-discovered the well-springs of his
strength and resilience As Filipinos, we have found our true Identity. And
having broken our crisis of Identity, we are no longer apologetic and
afraid. "25 The very Idea of a crisis, however, signifies a transitory, certainly
not a permanent, state of things. President Marcos accordingly has not been
hesitant in giving utterance to his conviction that full implementation of the
modified parliamentary system under the present Constitution should not be
further delayed. The full restoration of civilian rule can thus be expected. That
is more in accord with the imperatives of a constitutional order. It should not
go unnoticed either that the President has referred to the present regime as
one of "constitutional authoritarianism." That has a less objectionable ring,
authority being more Identified with the Idea of law, as based on right, the very
antithesis of naked force, which to the popular mind is associated with
dictatorship, even if referred to as "constitutional."
For me likewise, that equally eminent scholar Corwin, also invoked in the
opinion of the Court, while no doubt a partisan of d strong Presidency, was not
averse to constitutional restraints even during periods of crisis. So I would
interpret this excerpt from the fourth edition of his classic treatise on the
Presidency: "A regime of martial law may be compendiously, if not altogether
accurately, defined as one in which the ordinary law, as administered by the
ordinary courts, is superseded for the time being by the will of a military
commander. It follows that, when martial law is instituted under national
authority, it rests ultimately on the will of the President of the United States in
his capacity as Commander-in-Chief. It should be added at once,
nevertheless, that the subject is one in which the record of actual practice fails
often to support the niceties of theory. Thus, the employment of the military
arm in the enforcement of the civil law does not invariably, or even usually,
involve martial law in the strict sense, for, as was noted in the preceding
section, soldiers are often placed simply at the disposal and direction of the
civil authorities as a kind of supplementary police, or posse comitatus on the
other hand be reason of the discretion that the civil authorities themselves are
apt to vest in the military in any emergency requiring its assistance, the line
between such an employment of the military and a regime of martial law is
frequently any but a hard and fast one. And partly because of these
ambiguities the conception itself of martial law today bifurcates into two
conceptions, one of which shades off into military government and the other
into the situation just described, in which the civil authority remains
theoretically in control although dependent on military aid. Finally, there is the
situation that obtained throughout the North during the Civil War, when the
privilege of the writ of habeas corpus was suspended as to certain classes of
suspects, although other characteristics of martial law were generally
absent." 26
It is by virtue of the above considerations that, with due respect to the opinion
of my brethren, I cannot yield assent to the Rossiter view of concentration of
governmental powers in the Executive during martial law.
5 There is necessity then, for me at least, that the specific question raised in
all three petitions be squarely faced. It is to the credit of the opinion of the Court
that it did so. The basic issue posed concerns the boundaries of the power of
the President during this period of martial law, more precisely whether it covers
proposing amendments to the Constitution. There is the further qualification if
the stand of respondents be taken into account that the interim National
Assembly has not been convened and is not likely to be called into session in
deference to the wishes of the people as expressed in three previous
referenda. It is the ruling of the majority that the answer be in the affirmative,
such authority being well within the area of presidential competence. Again I
find myself unable to join readily in that conviction. It does seem to me that the
metes and bounds of the executive domain, while still recognizable, do appear
blurred. This is not to assert that there is absolutely no basis for such a
conclusion, sustained as it is by a liberal construction of the principle that
underlies Aquino v. Commission on Elections as to the validity of the exercise
of the legislative prerogative by the President as long as the interim National
Assembly is not For me, the stage of certitude has not been reached. I cannot
simply ignore the vigorous plea of petitioners that there is a constitutional
deficiency consisting in the absence of any constituent power on the part of
the President, the express provision of the Constitution conferring it on the by
team National Assembly. 27 The learned advocacy reflected in the pleadings
as well as the oral discourse of Solicitor General Estelito P. Mendoza 21 failed
to erase the grave doubts in my mind that the Aquino doctrine as to the
possession of legislative competence by the President during this period of
transition with the interim lawmaking body not called into session be thus
expanded. The majority of my brethren took that step. I am not prepared to go
that far. I will explain why.
The way for me, is beset with obstacles. In the first place, such an approach
would lose sight of the distinction between matters legislative and constituent.
That is implicit in the treatise on the 1935 Constitution by Justices Malcolm
and Laurel In their casebook published the same year, one of the four
decisions on the subject of constitutional amendments is Ellingham v. Dye 31
which categorically distinguished between constituent and legislative powers.
Dean Sinco, a well-known authority on the subject, was quite explicit. Thus: "If
there had been no express provision in the Constitution granting Congress the
power to propose amendments, it would be outside its authority to assume that
power. Congress may not claim it under the general grant of legislative power
for such grant does not carry with it the right 'to erect the state, institute the
form of its government,' which is considered a function inherent in the people.
Congressional law- making authority is limited to the power of approving the
laws 'of civil conduct relating to the details and particulars of the government
instituted,' the government established by the people."12 If that distinction be
preserved, then for me the aforecited Aquino decision does not reach the heart
of the matter. Nor is this all. In the main opinion of Justice Makasiar as well as
that of the then Justice, now Chief Justice, Castro, support for the ruling that
the President cannot be deemed as devoid of legislative power during this
transition stage is supplied by implications from explicit constitutional
provisions. 13 That is not the case with the power to propose amendments. It
is solely the interim National Assembly that is mentioned. That is the barrier
that for me is well-nigh insurmountable. If I limit myself to entertaining doubts
rather than registering a dissent on this point, it is solely because of the
consideration, possessed of weight and significance, that there may be indeed
in this far-from-quiescent and static period a need for al. amendments. I do not
feel confident therefore that a negative vote on my part would be warranted.
What would justify the step taken by the President, even if no complete
acceptance be accorded to the view that he was a mere conduit of the
barangays on this matter, is that as noted in both qualified concurrences by
Justices Teehankee and Munoz Palma in Aquino, as far as the legislative and
appropriately powers are concerned, is the necessity that unless such
authority be recognized, there may be paralyzation of governmental activities,
While not squarely applicable, such an approach has, to my mind, a
persuasive quality as far as the power to propose amendments is concerned.
Thus I would confine myself to the expression of serious doubts on the
question rather than a dissent.
6. The constitutional issue posed as thus viewed leaves me free to concur in
the result that the petitions be dismissed. That is to accord respect to the
principle that judicial review goes no further than to checking clear infractions
of the fundamental law, except in the field of human rights where a much
greater vigilance is required, That is to make of the Constitution a pathway to
rather than a barrier against a desirable objective. -As shown by my concurring
and dissenting opinion in Tolentino Commission on Elections '34 a pre-martial
law decision, the fundamental postulate that sovereignty resides in the people
exerts a compelling force requiring the judiciary to refrain as much as possible
from denying the people the opportunity to make known their wishes on
matters of the utmost import for the life of the nation, Constitutional
amendments fall in that category. I am fortified in that conviction by the
teaching of persuasive American decisions There is reinforcement to such a
conclusion from retired Chief Justice Concepcion's concurring and dissenting
opinion in Aytona v. Castillo,17 Which I consider applicable to the present
situation. These are his words: "It is well settled that the granting of writs of
prohibition and mandamus is ordinarily within the sound discretion of the
courts, to be exercised on equitable principles, and that said writs should be
issued when the right to the relief is clear * * by As he noted in his ponencia in
the later case of Gonzales v. Hechanova,19 an action for prohibition, while
petitioner was sustained in his stand, no injunction was issued. This was
evident in the dispositive portion where judgment was rendered "declaring that
respondent Executive Secretary had and has no power to authorize the
importation in question; that he exceeded his jurisdiction in granting said
authority; that said importation is not sanctioned by law and is contrary to its
provisions; and that, for lack of the requisite majority, the injunction prayed for
must be and is, accordingly, denied." 40 With the illumination thus supplied, it
does not necessarily follow that even a dissent on my part would necessarily
compel that I vote for the relief prayed for. Certainly this is not to belittle in any
way the action taken by petitioners in filing these suits. That, for me, is
commendable. It attests to their belief in the rule of law. Even if their contention
as to lack of presidential power be accepted in their entirety, however, there is
still discretion that may be exercised on the matter, prohibition being an
equitable remedy. There are, for me, potent considerations that argue against
acceding to the plea. With the prospect of the interim National Assembly being
convened being dim, if not non- existent, if only because of the results in three
previous referenda, there would be no constitutional agency other than the
Executive who could propose amendments, which, as noted. may urgently
press for adoption. Of even greater weight, to my mind, is the pronouncement
by the President that the plebiscite is intended not only to solve a constitutional
anomaly with the country devoid of a legislative body but also to provide. the
machinery be which the termination of martial law could be hastened. That is
a consummation devoutly to be wished. That does militate strongly against the
stand of petitioners. The obstruction they would pose may be fraught with
pernicious consequences. It may not be amiss to refer anew to what I deem
the cardinal character of the jural postulate explicitly affirmed in both the 1935
and the present Constitutions that sovereignty resides in the people. So I made
clear in Tolentino v. Commission on Elections and thereafter in my dissent in
Javellana v. The Executive Secretary" and my concurrence in Aquino v.
Commission on Elections. 42 The destiny of the country lies in their keeping.
The role of leadership is not to be minimized. It is crucial it is of the essence.
Nonetheless, it is their will, if given expression in a manner sanctioned by law
and with due care that there be no mistake in its appraisal, that should be
controlling. There is all the more reason then to encourage their participation
in the power process. That is to make the regime truly democratic.
Constitutional orthodoxy requires, however, that the fundamental law be
followed. So I would interpret Laski, 43 Corwin, 44 Lerner, 45, Bryn-Jones, 46 and
McIver.47
7. There is reassurance in the thought that this Court has affirmed its
commitment to the principle that the amending process gives rise to a
justiciable rather than a political question. So, it has been since the leading
case of Gonzales v. Commission on Election S. 48 It has since then been
followed in Tolentino v. Commission on Elections 49 Planas v. Commission on
Elections," and lastly, in Javellana v. The Executive Secretary This Court did
not heed the vigorous plea of the Solicitor General to resurrect the political
question doctrine announced in Mabanag v. Lopez Vito. 52This is not to deny
that the federal rule in the United States as set forth in the leading case of
Coleman v. Miller , 53 a 1939 decision, and relatively recent State court
decisions, supply ammunition to such a contention., 51 That may be the case
in the United States, but certainly not in this jurisdiction. Philippine
constitutional tradition is to the contrary. It can trace its origin to these words
in the valedictory address before the 1934-35 Constitutional Convention by the
illustrious Claro M. Recto: "It is one of the paradoxes a democracy that the
people of times place more confidence in instrumentalities of the State other
than those directly chosen by them for the exercise of their sovereignty It can
be said with truth, therefore, that there has invariably been a judicial
predisposition to activism rather than self-restraint. The thinking all these years
has been that it goes to the heart of constitutionalism. It may be said that this
Court has shunned the role of a mere interpreter; it did exercise at times
creative power. It has to that extent participated in the molding of policy, It has
always recognized that in the large and undefined field of constitutional law,
adjudication partakes of the quality of statecraft. The assumption has been
that just because it cannot by itself guarantee the formation, much less the
perpetuation of democratic values or, realistically, it cannot prevail against the
pressure of political forces if they are bent in other directions. it does not follow
that it should not contribute its thinking to the extent that it can. It has been
asked, it will continue to be asked, to decide momentous questions at each
critical stage of this nation's life.
There must be, however, this caveat. Judicial activism gives rise to difficulties
in an era of transformation and change. A society in flux calls for dynamism in
"he law, which must be responsive to the social forces at work. It cannot remain
static. It must be sensitive to life. This Court then must avoid the rigidity of legal
Ideas. It must resist the temptation of allowing in the wasteland of meaningless
abstractions. It must face stubborn reality. It has to have a feel for the
complexities of the times. This is not to discount the risk that it may be swept
too far and too fast in the surge of novel concepts. The past too is entitled to a
hearing; it cannot just be summarily ignored. History still has its uses. It is not
for this Court to renounce the virtue of systematic jural consistency. It cannot
simply yield to the sovereign sway of the accomplished fact. It must be deaf to
the dissonant dialectic of what appears to be a splintered society. It should
strive to be a factor for unity under a rule of law. There must be, on its part,
awareness of the truth that a new juridical age born before its appointed time
may be the cause of unprecedented travail that may not end at birth. It is by
virtue of such considerations that I did strive for a confluence of principle and
practicality. I must confess that I did approach the matter with some misgivings
and certainly without any illusion of omniscience. I am comforted by the
thought that immortality does not inhere in judicial opinions. 8. 1 am thus led
by my studies on the subject of constitutional law and, much more so, by
previous judicial opinions to concur in the dismissal of the petitions. If I gave
expression to byes not currently fashionable, it is solely due to deeply-
ingrained beliefs. Certainly, I am the first to recognize the worth of' the social
and economic reforms so needed by the troubled present that have been
introduced and implemented. There is no thought then of minimizing, much
less of refusing to concede, the considerable progress that has been made
and the benefits that have been achieved under this Administration. Again, to
reiterate one of my cherished convictions, I certainly approve of the adherence
to the fundamental principle of popular sovereignty which, to be meaningful
however, requires both freedom in its manifestation and accuracy in
ascertaining what it wills. Then, too, it is fitting and proper that a distinction was
made between two aspects of the coming poll, the referendum and the
plebiscite. It is only the latter that is impressed with authoritative force. So the
Constitution requires. Lastly, there should be, as I did mention in my
concurrence in Aquino v. Commission on Elections,56 full respect for free
speech and press, free assembly and free association. There should be no
thought of branding the opposition as the enemy and the expression of its
views as anathema, Dissent, it is fortunate to note, has been encouraged. It
has not been Identified with disloyalty. That ought to be the case, and not
solely due to presidential decrees. Constructive criticism is to be welcomed
not so much because of the right to be heard but because there may be
something worth hearing. That is to ensure a true ferment of Ideas, an interplay
of knowledgeable minds. There are though well- defined limits, One may not
advocate disorder in the name of protest, much less preach rebellion under
the cloak of dissent.. What I mean to stress is that except on a showing of clear
and present danger, there must be respect for the traditional liberties that make
a society truly free.
TEEHANKEE, J., dissenting:
1. On the merits: I dissent from the majority's dismissal of the petitions for lack
of merit and vote to grant the petitions for the following reasons and
considerations: 1. It is undisputed that neither the 1935 Constitution nor the
1973 Constitution grants to the incumbent President the constituent power to
propose and approve amendments to the Constitution to be submitted to the
people for ratification in a plebiscite. The 1935 Constitution expressly vests the
constituent power in Congress, be a three-fourths vote of all its members, to
propose amendments or call a constitutional convention for the purpose The
1973 Constitution expressly vests the constituent power in the regular National
Assembly to propose amendments (by a three-fourths vote of all its members)
or "call a constitutional convention" (by a two-thirds vote of all its members) or
"submit the question of calling such convention to the electorate in an election"
(by a majority vote of all its members ) .2
The transitory provisions of the 1973 Constitution expressing vest the
constituent power during the period of transition in the interim National
Assembly "upon special call be the Prime Minister (the incumbent President
3)... by a majority ore of all its members (to) propose amendments."
Since the Constitution provides for the organization of the essential
departments of government, defines and delimits the powers of each and
prescribes the manner of the exercise of such powers, and the constituent
power has not been granted to but has been withheld from the President or
Prime Minister, it follows that the President's questioned decrease proposing
and submitting constitutional amendments directly to the people (without the
intervention of the interim National Assembly in whom the power is expressly
vested) are devoid of constitutional and legal basis.
2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in
the case at bar In therein declaring null and void the acts of the 1971
Constitutional Convention and of the Comelec in calling a plebiscite with the
general elections scheduled for November 8, 1971 for the purpose of
submitting for the people's ratification an advance amendment reducing the
voting age from 21 years to 18 years, and issuing writs of prohibition and
injunction against the holding of the plebiscite, this Court speaking through Mr.
Justice Barredo ruled that --The Constitutional provisions on amendments
"dealing with the procedure or manner of amending the fundamental law are
binding upon the Convention and the other departments of the government,
(land) are no less binding upon the people
As long as an amendment is formulated and submitted under the aegis
of the present Charter, any proposal for such amendment which is not
in conformity with the letter, spirit and intent of the Charter for effecting
amendments, cannot receive the sanction of this Court ; 8
The real issue here cannot be whether or not the amending process delineated
by the present Constitution may be disregarded in favor of allowing the
sovereign people to express their decision on the proposed amendments, if
only because it is evident that the very Idea of departing from the fundamental
law is anachronistic in the realm of constitutionalism and repugnant to the
essence of the rule of law,"; 9 and
-Accordingly barred the plebiscite as improper and premature, since "the
provisional nature of the proposed amendments and the manner of its
submission to the people for ratification or rejection" did not "conform with the
mandate of the people themselves in such regard, as expressed in the
Constitution itself', 10 i.e. the mandatory requirements of the amending
process as set forth in the Article on Amendments.
3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis,
it is clear that where the proposed amendments are violative of the
Constitutional mandate on the amending process not merely for being a
"partial amendment" of a "temporary or provisional character" (as in Tolentino)
but more so for not being proposed and approved by the department vested
by the Constitution with the constituent power to do so, and hence
transgressing the substantive provision that it is only the interim National
Assembly, upon special call of the interim Prime Minister, bu a majority vote of
all its members that may propose the amendments, the Court must declare
the amendments proposals null and void.
4. This is so because the Constitution is a "superior paramount law,
unchangeable by ordinary means" 11 but only by the particular mode and
manner prescribed therein by the people. As stressed by Cooley, "by the
Constitution which they establish, (the people) not only tie up the hands of their
official agencies but their own hands as well; and neither the officers of the
State, nor the whole people as an aggregate body, are at liberty to take action
in opposition to this fundamental law." 12
The vesting of the constituent power to propose amendments in the legislative
body (the regular National Assembly) or the interim National Assembly during
the transition period) or in a constitutional convention called for the purpose is
in accordance with universal practice. "From the very necessity of the case"
Cooley points out "amendments to an existing constitution, or entire revisions
of it, must be prepared and matured by some body of representatives chosen
for the purpose. It is obviously impossible for the whole people to meet,
prepare, and discuss the proposed alterations, and there seems to be no
feasible mode by which an expression of their will can be obtained, except by
asking it upon the single point of assent or disapproval." This body of
representatives vested with the constituent - power "submits the result of their
deliberations" and "puts in proper form the questions of amendment upon
which the people are to pass"-for ratification or rejection. 13
5. The Court in Tolentino thus rejected the argument "that the end sought to
be achieved is to be desired" and in denying reconsideration in paraphrase of
the late Claro M. Recto declared that "let those who would put aside, invoking
grounds at best controversial, any mandate of the fundamental purportedly in
order to attain some laudable objective bear in mind that someday somehow
others with purportedly more laudable objectives may take advantage of the
precedent and continue the destruction of the Constitution, making those who
laid down the precedent of justifying deviations from the requirements of the
Constitution the victims of their own folly."
This same apprehension was echoed by now retired Justice Calixto O.
Zaldivar in his dissenting opinion in the Ratification cases 14 that "we will be
opening the gates for a similar disregard to the Constitution in the future. What
I mean is that if this Court now declares that a new Constitution is now in force
because the members of the citizens assemblies had approved said new
Constitution, although that approval was not in accordance with the procedure
and the requirements prescribed in the 1935 Constitution, it can happen again
in some future time that some amendments to the Constitution may be
adopted, even in a manner contrary to the existing Constitution and the law,
and then said proposed amendments is submitted to the people in any manner
and what will matter is that a basis is claimed that there was approval by the
people. There will not be stability in our constitutional system, and necessarily
no stability in our government."
6. It is not legally tenable for the majority, without overruling the controlling
precedent of Tolentino (and without mustering the required majority vote to so
overrule) to accept the proposed; amendments as valid notwithstanding their
being "not in conformity with the letter, spirit and intent of the provision of the
Charter for effecting amendments" on the reasoning that "If the President has
been legitimately discharging the legislative functions of the interim National
Assembly, there is no reason why he cannot validly discharge the
functions."15
In the earlier leading case of Gonzales vs. Comelec 16, this Court speaking
through now retired Chief Justice Roberto Concepcion, pointer out that
"Indeed, the power to Congress" 17 or to the National Assembly.18 Where it
not for the express grant in the Transitory Provisions of the constituent power
to the interim National Assembly, the interim National Assembly could not
claim the power under the general grant of legislative power during the
transition period.
The majority's ruling in the Referendum cases 19 that the Transitory Provision
in section 3(2) recognized the existence of the authority to legislate in favor of
the incumbent President during the period of martial law manifestly cannot be
stretched to encompass the constituent power as expressly vested in the
interim National Assembly in derogation of the allotment of powers defined in
the Constitution.
Paraphrasing Cooley on the non-delegation of legislative power as one of the
settled maxims of constitutional law,20 the contituent power has been lodged
by the sovereign power of the people with the interim National Assembly during
the transition period and there it must remain as the sole constitutional agency
until the Constitution itself is changed.
As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of
Angara vs. Electoral Commissioner 21, "(T)he Constitution sets forth in no
uncertain language and restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which
to direct the course of government along constitutional channels, for then the
distribution of powers sentiment, and the principles of good government mere
political apothegms. Certainly, the limitations and restrictions embodied in our
Constitution are real as they should be in any living Constitution".
7. Neither is the justification of "constitutional impasses" tenable. The
sentiment of the people against the convening of the interim National
Assembly and to have no elections for "at least seven (7) years" Concededly
could not ament the Constitution insofar as the interim National Assembly is
concerned (since it admittendly came into existence "immediately" upon the
proclamation of ratification of the 1973 Constitution), much less remove the
constituent power from said interim National Assembly.
As stressed in the writer's separate opinion in the Referendum cases 22,
"(W)hile it has been advanced that the decision to defer the initial convocation
of the interim National Assembly was supported by the results of the
referendum in January, 1973 when the people voted against the convening of
the interim National Assembly for at least seven years, such sentiment cannot
be given any legal force and effect in the light of the State's admission at the
hearing that such referendums are merely consultative and cannot amend the
Constitution or Provisions which call for the 'immediate existence' and 'initial
convening of the interim National Assembly to 'give priority to measures for the
orderly transition from the presidential to the parliamentary system' and the
other urgent measures enumerated in section 5 thereof".
While the people reportedly expressed their mandate against the convening of
the interim National Assembly to dischange its legislative tasks during the
period of transition under martial law, they certainly had no opportunity and did
not express themselves against convening the interim National Assembly to
discharge the constituent power to propose amendments likewise vested in it
by the people's mandate in the Constitution.
In point of fact, when the holding of the October 16, 1976 referendum was first
announced, the newspapers reported that among the seven questions
proposed by the sanggunian and barangay national executive committies for
the referendum was the convening of the interim National Assembly. 23
It was further reported that the proposals which were termed tentative "will be
discussed and studied by (the President), the members of the cabinet, and the
security council" and that the barangays felt, notwithstanding the previous
referenda on the convening of the interim National Assembly that "it is time to
again ask the people's opinion of this matter " 24
8. If proposals for constitutional amendments are now deemed necessary to
be discussed and adopted for submittal to the people, strict adherence with
the mandatory requirements of the amending process as provided in the
Constitution must be complied with. This means, under the teaching of
Tolentino that the proposed amendments must validly come from the
constitutional agency vested with the constituent power to do so, namely, the
interim National Assembly, and not from the executive power as vested in the
Prime Minister (the incumbent President) with the assistance of the
Cabinet 25 from whom such power has been withheld.
It will not do to contend that these proposals represent the voice of the people
for as was aptly stated by Cooley "Me voice of the people, acting in their
sovereign capacity, can be of legal force only when expressed at the times
and under the conditions which they themselves have prescribed and pointed
out by the Constitution. ... ."26
The same argument was put forward and rejected by this Court in Tolentino
which rejected the contention that the "Convention being a legislative body of
the highest order (and directly elected by the people to speak their voice) is
sovereign, in as such, its acts impugned by petitioner are beyond the control
of Congress and the Courts" and ruled that the constitutional article on the
amending process" is nothing more than a part of the Constitution thus
ordained by the people. Hence, in continuing said section, We must read it as
if the people said, "The Constitution may be amended, but it is our will that the
amendment must be proposed and submitted to Us for ratification only in the
manner herein provided'". 27
This Court therein stressed that "This must be so, because it is plain to Us that
the framers of the Constitution took care that the process of amending the
same should not be undertaken with the same ease and facility in changing
an ordinary legislation. Constitution making is the most valued power, second
to none, of the people in a constitutional democracy such as the one our
founding fathers have chosen for this nation, and which we of the succeeding
generations generally cherish. And because the Constitution affects the lives,
fortunes, future and every other conceivable aspect of the lives of all the
people within the country and those subject to its sovereignity, ever
constitution worthy of the people for which it is intended must not be prepared
in haste without adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less importance
than the whole Constitution itself, and perforce must be conceived and
prepared with as much care and deliberation;" and that "written constitutions
are supposed to be designed so as to last for some time, if not for ages, or for,
at least, as long as they can be adopted to the needs and exigencies of the
people, hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. Thus, as a rule,
the original constitutions carry with them limitations and conditions, more or
less stringent, made so by the people themselves, in regard to the process of
their amendment." 28
9. The convening of the interim National Assembly to exercise the constituent
power to proposed amendments is the only way to fulfill the express mandate
of the Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in
the setting as in of a Comelec resolution banning the use of political taped
jingles by candidates for Constitutional Convention delegates int he special
1970 elections, "the concept of the Constitution as the fundamental law, setting
forth the criterion for the validity of any public act whether proceeding from the
highest official or the lowest functionary, is a postulate of our system of
government. That is to amnifst fealty to the rule of law, with priority accorded
to that which occupies the topmost rung in the legal heirarchy. The three
departments of government in the discharge of the functions with which it is
entrusted have no choice but to yield obedience to its commands. Whatever
limits it imposes must be observed. Congress in the enactment of statutes
must ever be on guart lest the restrictions on its authority, whether substantive
or formal, be transcended. The Presidency in the execution of the laws cannot
ignore of disregard what it ordains. In its task of applying the law to the facts
as found in deciding cases, the judiciary is called upon the maintain inviolate
what is decreed by the fundamental law."
This is but to give meaning to the plan and clear mandate of section 15 of the
Transitory Provisions (which allows of no other interpretation) that during the
stage of transition the interim National Assembly alone exercises the
constituent power to propose amendments, upon special call therefor. This is
reinforced by the fact that the cited section does not grant to the regular
National Assembly of calling a constitutional convention, thus expressing the
will of the Convention (and presumably of the people upon ratification) that if
ever the need to propose amendments arose during the limited period of
transition, the interim National Assembly alone would discharge the task and
no constitutional convention could be call for the purpose.
As to the alleged costs involved in convening the interim National Assembly to
propose amendments, among them its own abolition, (P24 million annually in
salaries alone for its 400 members at P600,000.00 per annum per member,
assuming that its deliberations could last for one year), suffice it to recall this
Court's pronouncement in Tolentino (in reflecting a similar argument on the
costs of holding a plebiscite separately from the general elections for elective
officials) that "it is a matter of public knowledge that bigger amounts have been
spent or thrown to waste for many lesser objectives. ... Surely, the amount of
seventeen million pesos or even more is not too much a price to pay for fealty
and loyalty to the Constitution ... " 30 and that "while the financial costs of a
separate plebiscite may be high, it can never be as much as the dangers
involved in disregarding clear mandate of the Constitution, no matter how
laudable the objective" and "no consideration of financial costs shall deter Us
from adherence to the requirements of the Constitution".11
10. The imposition of martial law (and "the problems of rebellion, subversion,
secession, recession, inflation and economic crisis a crisis greater than
war") 32 cited by the majority opinion as justifying the concentration of powers
in the President, and the recognition now of his exercising the constituent
power to propose amendments to the Fundamental Law "as agent for and in
behalf of the people" 33 has no constitutional basis.
In the post-war Emergency Powers 33*, former Chief Justice Ricardo Paras
reaffirmed for the Court the principle that emergency in itself cannot and should
not create power. In our democracy the hope and survival of the nation lie in
the wisdom and unselfish patriotism of all officials and in their faithful
'Adherence to the Constitution".
The martial law clause of the 1973 Constitution found in Article IX, section 12 ,
as stressed by the writer in his separate opinion in the Referendum Cases,14
"is a verbatim reproduction of Article VII, section 10 (2) of the 1935 Constitution
and provides for the imposition of martial law only 'in case of invasion,
resurrection or rebellion, or imminent danger thereof, when the public safety
requires it and hence the use of the legislative power or more accurately
'military power' under martial rule is limited to such necessary measures as will
safeguard the Republic and suppress the rebellion (or invasion)". 35
11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by
the majority in the Referendum Cases to be the recognition or warrant for the
exercise of legislative power by the President during the period of martial law
is but a transitory provision. Together with the martial law clause, they
constitute but two provisions which are not to be considered in isolation from
the Constitution but as mere integral parts thereof which must be harmonized
consistently with the entire Constitution.
As Cooley restated the rule: "effect is to be given, if possible, to the whole
instrument, and to every section and clause. If different portions seem to
conflict, the courts must harmonize them, if practicable, and must lean in favor
of a construction which will render every word operative, rather than one which
may make some words Idle and nugatory.
This rule is applicable with special force to written constitutions, in
which the people will be presumed to have expressed themselves in
careful and measured terms, corresponding with the immense
importance of the powers delegated, leaving as little as possible to
implication. It is scarcelly conceivable that a case can arise where a
 court would bye justified in declaring any portion of a written
constitution nugatory because of ambiguity. One part may qualify
another so as to restrict its operation, or apply it otherwise than the
natural construction would require if it stood by itself; but one part is
not to be allowed to defeat another, if by any reasonable construction
the two can be made to stand together. 36
The transcendental constituent power to propose and approve amendments
to the Constitution as well as set up the machinery and prescribe the procedure
for the ratification of his proposals has been withheld from the President (Prime
Minister) as sole repository of the Executive Power, presumably in view of the
immense powers already vested in him by the Constitution but just as
importantly, because by the very nature of the constituent power, such
amendments proposals have to be prepared, deliberated and matured by a
deliberative assembly of representatives such as the interim National
Assembly and hence may not be antithetically entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before the elevation
of the l971 Constitutional Convention that the records of past plebiscites show
that the constitutional agency vested with the exercise of the constituent power
(Congress or the Constitutional Convention) really determined the
amendments to the Constitution since the proposals were invariably ratified by
the people 37 thus: "although the people have the reserved power to ratify or
reject the action taken by the Convention, such power is not, in view of the
circumstances attending its exercise, as effective as one might otherwise
think: that, despite the requisite ratification by the people, the actual contents
of our fundamental law will really be determined by the Convention; that,
accordingly the people should exercise the greatest possible degree of
circumspection in the election of delegates thereto ... " 38
12. Martial law concededly does not abrogate the Constitution nor obliterate
its constitutional boundaries and allocation of powers among the Executive,
Legislative and Judicial Departments. 39
It has thus been aptly observed that "Martial law is an emergency regime,
authorized by and subject to the Constitution. Its basic premise is to preserve
and to maintain the Republic against the dangers that threaten it. Such
premise imposes constraints and limitations. For the martial law regime fulfills
the constitutional purpose only if, by reason of martial law measures, the
Republic is preserved. If by reason of such measures the Republic is so
transformed that it is changed in its nature and becomes a State other than
republican, then martial law is a failure; worse, martial law would have become
the enemy of the Republic rather than its defender and preserver."40
II. On the question of the Court's jurisdiction to pass upon the constitutionality
of the questioned presidential decrees: let it be underscored that the Court has
long set at rest the question.
The trail was blazed for the Court since the benchmark case of Angara vs.
Electoral Commission when Justice Jose P. Laurel echoed U.S. Chief Justice
Marshall's "climactic phrase" that "we must never forget that it is a Constitution
we are expounding" and declared the Court's "solemn and sacred"
constitutional obligation of judicial review and laid down the doctrine that the
Philippine Constitution as "a definition of the powers of government" placed
upon the judiciary the great burden of "determining the nature, scope and
extent of such powers" and stressed that "when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the
other departments . . . but only asserts the solemn and sacred obliteration
entrusted to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy
the rights which the instrument secures and guarantees to them".
At the same time, the Court likewise adhered to the constitutional tenet that
political questions, i.e. questions which are intended by the Constitutional and
relevant laws to be conclusively determined by the "political", i.e. branches of
government (namely, the Executive and the Legislative) are outside the
Court's jurisdiction. 41
Thus, in Gonzales, 42 (by a unanimous Court) and in Tolentino 43 (by the
required constitutional majority), the Court has since consistently ruled that
when proposing and approving amendments to the Constitution, the members
of Congress. acting as a constituent assembly or the members of the
Constitutional Convention elected directly for the purpose by not have the final
say on whether or not their acts are within or beyond constitutional limits.
Otherwise, they could brush aside and set the same at naught, contrary to the
basic tenet that outs is it government of lawsom not of men, and to the rigid
nature of our Constitution. Such rigidity is stressed by the fact that, the
Constitution expressly confers upon the Supreme Court, the power to declare
a treaty unconstitutional, despite the eminently political character of treaty-
making power". 44
As amplified by former Chief Justice Concepcion in Javellana vs Executive
Secretary 45 (by a majority vote), "when the grant of power is qualified,
conditional or subject to limitations. the issue on whether or not the prescribed
qualifications or conditions have been met, or the limitations by expected, is
justiciable or non-political, the crux of the problem being one of legality or
validity of the contested act, not its wisdom Otherwise, said qualifications,
conditions and limitations-particularly those prescribed or imposed by the
Constitution would be set at naught".
The fact that the proposed amendments are to be submitted to the people for
ratification by no means makes the question political and non- justiciable since
as stressed even in Javellana the issue of validity of the President's
proclamation of ratification of the Constitution presented a justiciable and non-
political question
Stated otherwise, the question of whether the Legislative acting as a
constituent assembly or the Constitutional Convention called fol- the purpose,
in proposing amendments to the people for ratification followed the
constitutional procedure and on the amending process is perforce a justiciable
question and does not raise a political question of police or wisdom of the
proposed amendments, which if Submitted, are reserved for the people's
decision.
The substantive question presented in the case at bar of whether the President
may legally exercise the constituent power vested in the interim National
Assembly (which has not been granted to his office) and propose constitutional
amendments is preeminently a justiciable issue.
Justice Laurel in Angara had duly enjoined that "in times of social disquietude
or political excitement, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments
and among the integral or constituent units thereof".
To follow the easy way out by disclaiming jurisdiction over the issue as a
political question would be judicial abdication.
III. On the question of whether there is a sufficient and proper submittal of the
proposed amendments to the people: Prescinding from the writer's view of the
nullity of the questioned decree of lack of authority on the President's part to
excercise the constituent power, I hold that the doctrine of fair and proper
submission first enunciated by a simple majority of by Justices in Gonzales
and subsequently officially adopted by the required constitutional two-thirds
majority of the Court in is controlling in the case at bar.
1. There cannot be said to be fair and proper submission of the proposed
amendments. As ruled by this Court in Tolentino where "the proposed
amendment in question is expressly saddled with reservations which naturally
impair, in great measures, its very essence as a proposed constitutional
amendment" and where "the way the proposal is worded, read together with
the reservations tacked to it by the Convention thru Section 3 of the questioned
resolution, it is too much of a speculation to assume what exactly the
amendment would really amount lo in the end. All in all, as already pointed out
in our discussion of movants' first ground, if this kind of amendment is allowed,
the Philippines will appear before the world to be in the absurd position of being
the only country with a constitution containing a provision so ephemeral no
one knows until when it will bet actually in force", there can be no proper
submission.
In Tolentino a solitary amendment reducing the voting age to 18 years was
struck down by this Court which ruled that "in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it must
provide the voter not only sufficient time but ample basis for an intelligent
appraisal of the nature of the amendment per se as well as its relation to the
other parts of the Constitution with which it has to form a harmonious whole,"
and that there was no proper Submission wherein the people are in the dark
as to frame of reference they can base their judgment on
2. The now Chief Justice and Mr. Justice Makasiar with two other members 46
graphically pointed out in their joint separate opinion that the solitary question
"would seem to be uncomplicated and innocuous. But it is one of life's verities
that things which appear to be simple may turn out not to be so simple after
all". 47
They further expressed "essential agreement" with Mr. Justice Conrado V.
Sanchez' separate opinion in Gonzales "on the minimum requirements that
must be met in order that there can be a proper submission to the people of a
proposed constitutional amendment" which reads thus:
... we take the view that the words 'submitted to the people for their
ratification', if construed in the light of the nature of the Constitution a
fundamental charter that is legislation direct from the people, an
expression of their sovereign will - is that it can only be amended by
the people expressing themselves according to the procedure
ordained by the Constitution. Therefore, amendments must be fairly
laid before the people for their blessing or spurning. The people are
not to be mere rubber stamps. They are not to vote blindly. They must
be afforded ample opportunity to mull over the original provisions,
compare them with the proposed amendments, and try to reach a
conclusion as the dictates of their conscience suggest, free from the
incubus of extraneous or possibly insidious influences. We believe the
word submitted' can only mean that the government, within its
maximum capabilities, should strain every effort to inform every citizen
of the provisions to be amended, and the proposed amendments and
the meaning, nature and effects thereof. By this, we are not to be
understood as saying that, if one citizen or 100 citizens or 1,000
citizens cannot be reached, then there is no submission within the
meaning of the word as intended by the framers of the Constitution.
What the Constitution in effect directs is that the government, in
 submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten
the people, educate them with respect to their act of ratification or
rejection. For, as we have earlier stated, one thing is submission and
another is ratification. There must be fair submission, intelligent.
consent or rejection. If with all these safeguards the people still
approve the amendment no matter how prejudicial it is to them, then
so be it. For the people decree their own fate. 48
Justice Sanchez therein ended the passage with an apt citation that " ... " The
great men who builded the structure of our state in this respect had the mental
vision of a good Constitution voiced by Judge Cooley, who has said 'A good
Constitution should be beyond the reach of temporary excitement and. popular
caprice or passion. It is needed for stability and steadiness; it must yield to the
thought of the people; not to the whim of the people, or the thought evolved in
excitement or hot blood, but the sober second thought, which alone, if the
government is to be safe, can be allowed efficiency. xxx xxx xxx Changes in
government are to be feared unless the benefit is certain. As Montaign says:
All great mutations shake and disorder state. Good does not necessarily
succeed evil ;another evil may succeed and a worse'." 49
Justice Sanchez thus stated the rule that has been adopted by the Court in
Tolentino that there is no proper submission "if the people are not sufficiently
affirmed of the amendments to be voted upon, to conscientiously deliberate
thereon, to express their will in a genuine manner. ... .." 50
3. From the complex and complicated proposed amendments set forth in the
challenged decree and the plethora of confused and confusing clarifications
reported in the daily newspapers, it is manifest that there is no proper
submission of the proposed amendments. Nine (9) proposed constitutional
amendments were officially proposed and made known as per Presidential
Decree No. 1033 dated, September 22, 1976 for submittal at the "referendum-
plebiscite" called for this coming Saturday, October 16, 1976 wherein the 15-
year and under 18-year- olds are enjoined to vote notwithstanding their lack of
qualification under Article VI of the Constitution. Former Senator Arturo
Tolentino, an acknowledged parliamentarian of the highest order, was
reported by the newspapers last October 3 to have observed that "there is no
urgency in approving the proposed amendments to the Constitution and
suggested that the question regarding charter changes be modified instead of
asking the people to vote on hurriedly prepared amendments". He further
pointed out that "apart from lacking the parliamentary style in the body of the
Constitution, they do not indicate what particular provisions are being repealed
or amended". 52
As of this writing, October 11, 1976, the paper today reported his seven-page
analysis questioning among others the proposed granting of dual legislative
powers to both the President and the Batasang Pambansa and remarking that
"This dual legislative authority can give rise to confusion and serious
constitutional questions". 53
Aside from the inadequacy of the limited time given for the people's
consideration of the proposed amendments, there can be no proper
submission because the proposed amendments are not in proper form and
violate the cardinal rule of amendments of written constitutions that the specific
provisions of the Constitution being repealed or amended as well as how the
specific provisions as amended would read, should be clearly stated in careful
and measured terms. There can be no proper submission because the
vagueness and ambiguity of the proposals do not sufficiently inform the people
of the amendments for, conscientious deliberation and intelligent consent or
rejection.
4. While the press and the Solicitor General at the hearing have stated that the
principal thrust of the proposals is to substitute the interim National Assembly
with an interim Batasang Pambansa, a serious study thereof in detail would
lead to the conclusion that the whole context of the 1973 Constitution proper
would be affected and grave amendments and modifications thereof -would
apparently be made, among others, as follows:
Under Amendment No. 1, the qualification age of members of the interim
Batasang Pambansa is reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the Legislature is
withheld from the interim Batasang Pambansa;
Under Amendment No 3, not withstanding the convening of the interim
Batasang Pambansa within 30 days from the election and selection of the
members (for which there is no fixed date) the incumbent President apparently
becomes a regular President and Prime Minister (not ad interim);
Under Amendment No. 4, the disqualifications imposed on members of the
Cabinet in the Constitution such as the prohibition against the holding of more
than one office in the government including government-owned or -controlled
corporations would appear to be eliminated, if not prescribed by the President;
Under Amendment No. 5, the President shall continue to exercise legislative
powers until martial law is lifted;
Under Amendment No. 6, there is a duality of legislative authority given the
President and the interim Batasang Pambansa as well as the regular National
Assembly, as pointed out by Senator Tolentino, with the President continuing
to exercise legislative powers in case of "grave emergency or a threat or
imminence thereof" (without definition of terms) or when said Assemblies "fail
or are unable to act adequately on any matter for any reason that in his
judgment requires immediate action", thus radically affecting provisions of the
Constitution governing the said departments;
Under Amendment No. 7, the barangays and Sanggunians would apparently
be constitutionalized, although their functions, power and composition may be
altered by law. Referendums (which are not authorized in the present 1973
Constitution) would also be constitutionalized, giving rise to the possibility
fraught with grave consequences, as acknowledged at the hearing, that
amendments to the Constitution may thereafter be effected by referendum,
rather than by the rigid and strict amending process provided presently in
Article XVI of the Constitution;
Under Amendment No. 8, there is a general statement in general that the
unspecified provisions of the Constitution "not inconsistent with any of these
amendments" shall continue in full force and effect; and Under Amendment
No. 9. the incumbent President is authorized to proclaim the ratification of the
amendments by the majority of votes cast. It has likewise been stressed by
the officials concerned that the proposed amendments come in a package and
may not be voted upon separately but on an "all or nothing" basis.
5. Whether the people can normally express their will in a genuine manner and
with due circumspection on the proposed amendments amidst the constraints
of martial law is yet another question. That a period of free debate and
discussion has to be declared of itself shows the limitations on free debate and
discussion. The facilities for free debate and discussion over the mass media,
print and otherwise are wanting. The President himself is reported to have
observed the timidity of the media under martial law and to have directed the
press to air the views of the opposition. 54
Indeed, the voice of the studentry as reflected in the editorial of the Philippine
Collegian issue of September 23, 1976 comes as a welcome and refreshing
model of conscientious deliberation, as our youth analyzes the issues "which
will affect generations yet to come" and urge the people to mull over the pros
and cons very carefully", as follows:
THE REFERENDUM ISSUES
On October 16, the people may be asked to decide on two important
national issues - the creation of a new legislative body and the lifting
of martial law.
On the first issue, it is almost sure that the interim National Assembly
will not be convened, primarily because of its membership. Majority of
the members of the defunct Congress, who are mandated by the
Constitution to become members of the interim National Assembly,
have gained so widespread a notoriety that the mere mention of
Congress conjures the image of a den of thieves who are out to fool
the people most of the time. Among the three branches of government,
it was the most discredited. In fact, upon the declaration of martial law,
some people were heard to mutter that a 'regime that has finally put
an end to such congressional shenanigans could not be all that bad'.
A substitute legislative body is contemplated to help the President in
promulgating laws, and perhaps minimize the issuance of ill-drafted
decrees which necessitate constant amendments. But care should be
taken that this new legislative body would not become a mere rubber
stamp akin to those of other totalitarian countries. It should be given
real powers, otherwise we will just have another nebulous creation
having the form but lacking the substance. Already the President has
expressed the desire that among the powers he would like to have
with regard to the proposed legislative body is that of abolishing it in
case 'there is a need to do so'. As to what would occasion such a need,
only the President himself can determine. This would afford the Chief
Executive almost total power over the legislature, for he could always
offer the members thereof a carrot and a stick.
On the matter of lifting martial law the people have expressed
ambivalent attitudes. Some of them, remembering the turmoil that
prevailed before the declaration of martial law, have expressed the
fear that its lifting might precipitate the revival of the abuses of the
past, and provide an occasion for evil elements to resurface with their
usual tricks. Others say that it is about time martial law was lifted since
the peace and order situation has already stabilized and the economy
seems to have been parked up.
The regime of martial law has been with us for four years now. No
doubt, martial law has initially secured some reforms for the country
The people were quite willing to participate in the new experiment,
thrilled by the novelty of it all. After the euphoria, however, the people
seem to have gone back to the old ways, with the exception that some
of our freedoms were taken away, and an authoritarian regime
established.
We must bear in mind that martial law was envisioned only to cope
with an existing national crisis, It was not meant to be availed of for a
long period of time, otherwise it would undermine our adherence to a
democratic form of government. In the words of the Constitution.
martial law shall only be declared in times of 'rebellion, insurrection,.
invasion, or imminent danger thereof, when the public safety requires
 it'. Since we no longer suffer from internal disturbances of a
gargantuan scale, it is about time we seriously rethink the 'necessity'
of prolonging the martial law regime. If we justify the continuance of
martial by economic or other reasons other than the foregoing
constitutional grounds, then our faith in the Constitution might be
questioned. Even without martial law,. the incumbent Chief Executive
still holds vast powers under the constitution. After all, the gains of the
New Society can be secured without sacrificing the freedom of our
people. If the converse is true, then we might have to conclude that
the Filipinos deserve a dictatorial form of government. The referendum
results will show whether the people themselves have adopted this
sad conclusion.
The response of the people to the foregoing issues will affect
generations yet to come, so they should mull over the pros and cons
very carefully."
6. This opinion by written in the same spirit as the President's exhortations on
the first anniversary of proclamation of the 1973 Constitution that we "let the
Constitution remain firm and stable" so that it may "guide the people", and that
we "remain steadfast on the rule of law and the Constitution" as he recalled
his rejection of the "exercise (of) power that can be Identified merely with a
revolutionary government" that makes its own law, thus:
. . . Whoever he may be and whatever position he may happen to
have, whether in government or outside government, it is absolutely
necessary now that we look solemnly and perceptively into the
Constitution and try to discover for ourselves what our role is in the
successful implementation of that Constitution. With this thought,
therefore, we can agree on one thing and that is: Let all of us age, let
all of us then pass away as a pace in the development of our country.
but let the Constitution remain firm and stable and let institutions grow
in strength from day to day, from achievement to achievement, and so
long as that Constitution stands, whoever may the man in power be,
whatever may his purpose be, that Constitution will guide the people
and no man, however, powerful he may be, will dare to destroy and
wreck the foundation of such a Constitution.
These are the reasons why I personally, having proclaimed martial
law, having been often induced to exercise power that can be
Identified merely with a revolutionary government, have remained
steadfast or the rule of law and the Constitution. 54*
IV. A final word on the Court's resolution of October 5, 1976 which in reply to
the Comelec query allowed by a vote of 7 to 3, judges of all courts, after office
hours, "to accept invitations to act as resource speakers under Section 5 of
Presidential Decree No. 991, as amended, as well as to take sides in
discussions and debates on the referendum-plebiscite questions under
Section 7 of the same Decree." 55
The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma had
dissented from the majority resolution, with all due respect, on the ground that
the non-participation of judges in such public discussions and debates on the
referendum-plebiscite questions would preserve the traditional non-
involvement of the judiciary in public discussions of controversial issues. This
is essential for the maintenance and enhancement of the people's faith and
confidence in the judiciary. The questions of the validity of the scheduled
referendum- plebiscite and of whether there is proper submission of the
proposed amendments were precisely subjudice by virtue of the cases at bar.
The lifting of the traditional inhibition of judges from public discussion and
debate might blemish the image and independence of the judiciary. Aside from
the fact that the fixing of a time limit for the acceptance of their courtesy
resignations to avoid an indefinite state of insecurity of their tenure in office still
spends litigants and their relatives and friends as well as a good sector of the
public would be hesitant to air views contrary to that of the.
Judge. Justices Makasiar and Munoz Palma who share these views have
agreed that we make them of record here, since we understand that the
permission given in the resolution is nevertheless addressed to the personal
decision and conscience of each judge, and these views may he of some
guidance to them.
BARREDO, J.,: concurring:
While I am in full agreement with the majority of my brethren that the herein
petitions should be dismissed, as in fact I vote for their dismissal, I deem it
imperative that I should state separately the considerations that have impelled
me to do so.
Perhaps, it is best that I should start by trying to disabuse the minds of those
who have doubts as to whether or not I should have taken part in the
consideration and resolution of these cases. Indeed, it would not be befitting
my position in this Highest Tribunal of the land for me to leave unmentioned
the circumstances which have given cause, I presume, for others to feel
apprehensive that my participation in these proceedings might detract from
that degree of faith in the impartiality that the Court's judgment herein should
ordinarily command. In a way, it can be said, of course, that I am the one most
responsible for such a rather problematical situation, and it is precisely for this
reason that I have decided to begin this opinion with a discussion of why I have
not inhibited myself, trusting most confidently that what I have to say will be
taken in the same spirit of good faith, sincerity and purity of purpose in which
I am resolved to offer the same.
Plain honesty dictates that I should make of record here the pertinent contents
of the official report of the Executive Committee of the Katipunan ng mga
Sanggunian submitted to the Katipunan itself about the proceedings held on
August 14, 1976. It is stated in that public document that:
THE ISSUE WITH REGARDS To THE CONVENING OF A
LEGISLATIVE body came out when the President express his desire
to share his powers with other people.
Aware of this, a five-man Committee members of the Philippine Constitution
Association (PHILCONSA) headed by Supreme Court Justice Antonio Barredo
proposed on July 28, the establishment of 'Sangguniang Pambansa' or
'Batasang Pambansa' which would help the President in the performance of
his legislative functions. The proposed new body will take the place of the
interim National Assembly which is considered not practical to convene at this
time considering the constitution of its membership.
Upon learning the proposal of Justice Barredo, the country's 42,000 barangay
assemblies on August 1 suggested that the people be consulted on a proposal
to create a new legislative body to replace the interim assembly provided for
by the Constitution. The suggestion of the barangay units was made through
their national association, Pambansang Katipunan ng mga Barangay headed
by Mrs. Nora Z. Patines. She said that the people have shown in at least six
instances including in the two past referenda that they are against the
convening of the interim National Assembly. She also said that since the
people had ruled out the calling of such assembly and that they have once
proposed that the President create instead the Sangguniang Pambansa or a
legislative advisory body, then the proposal to create a new legislative must
necessarily be referred to the people.
The federation of Kabataang Barangay, also numbering 42,000 units like their
elder counterparts in the Katipunan ng mga Barangay also asserted their own
right to be heard on whatever plans are afoot to convene a new legislative
body.
On August 6, a meeting of the national directorate of PKB was held to discuss
matters pertaining to the stand of the PKB with regards to the convening of a
new legislative body. The stand of the PKB is to create a legislative advisory
council in place of the old assembly. Two days after, August 8, the Kabataang
Barangay held a symposium and made a stand which is the creation of a body
with full legislative powers.
A nationwide clamor for the holding of meeting in their respective localities to
discuss more intellegently the proposal to create a new legislative body was
made by various urban and rural Sangguniang Bayans.
Numerous requests made by some members coming from 75 provincial and
61 city SB assemblies, were forwarded to the Department of Local
Government and Community Development (DLGCD).
On August 7, Local Government Secretary, Jose A. Rono granted the request
by convening the 91 member National Executive Committee of the
Pambansang Katipunan ng mga Sanggunian on August 14 which was held at
Session Hall, Quezon City. Invited also to participate were 13 Regional
Federation Presidents each coming from the PKB and the PKKB
Actually, the extent of my active participation in the events and deliberations
that have culminated in the holding of the proposed referendum- plebiscite on
October 16, 1976, which petitioners are here seeking to enjoin, has been more
substantial and meaningful than the above report imparts. Most importantly,
aside from being probably the first person to publicly articulate the need for the
creation of an interim legislative body to take the place of. the interim National
Assembly provided for in the Transitory Provisions of the Constitution, as
suggested in the above report, I might say that I was the one most vehement
and persistent in publicly advocating and urging the authorities concerned to
directly submit to the people in a plebiscite whatever amendments of the
Constitution might be considered necessary for the establishment of such
substitute interim legislature. In the aforementioned session of the Executive
Committee of the Katipunan, I discourse on the indispensability of a new
interim legislative body as the initial step towards the early lifting of martial law
and on the fundamental considerations why in our present situation a
constitutional convention would be superfluous in amending the Constitution.
Moreover, it is a matter of public knowledge that in a speech I delivered at the
Coral Ballroom of the Hilton Hotel in the evening of August 17, 1976, I
denounced in no uncertain terms the plan to call a constitutional convention. I
reiterated the same views on September 7, 1976 at the initial conference called
by the Comelec in the course of the information and educational campaign it
was enjoined to conduct on the subject. And looking back at the subsequent
developments up to September 22, 1976, when the Batasang Bayan approved
and the President signed the now impugned Presidential Decree No. 1033, it
is but human for me to want to believe that to a certain extent my strong
criticisms and resolute stand against any other alternative procedure of
amending the Constitution for the purpose intended had borne fruit.
I must hasten to add at this point, however, that in a larger sense, the initiative
for all I have done, was not altogether mine alone. The truth of the matter is
that throughout the four years of this martial law government, it has always
been my faith, as a result of casual and occasional exchanges of thought with
President Marcos, that when the appropriate time does come, the President
would somehow make it known that in his judgment, the situation has already
so improved as to permit the implementation, if gradual, of the constitutionally
envisioned evolution of our government from its present state to a
parliamentary one. Naturally, this would inevitably involve the establishment of
a legislative body to replace the abortive interim National Assembly. I have
kept tract of all the public and private pronouncements of the President, and it
was the result of my reading thereof that furnished the immediate basis for my
virtually precipitating, in one way or another, the materialization of the
forthcoming referendum-plebiscite. In other words, in the final analysis, it was
the President's own attitude on the matter that made it opportune for me to
articulate my own feelings and Ideas as to how the nation can move
meaningfully towards normalization and to publicly raise the issues that have
been ventilated by the parties in the instant cases.
I would not be human, if I did not consider myself privileged in having been
afforded by Divine Providence the opportunity to contribute a modest share in
the formulation of the steps that should lead ultimately to the lifting of martial
law in our country. Indeed, I am certain every true Filipino is anxiously looking
forward to that eventuality. And if for having voiced the sentiments of our
people, where others would have preferred to be comfortably silent, and if for
having made public what every Filipino must have been feeling in his heart all
these years, I should be singled out as entertaining such preconceived
opinions regarding the issues before the Court in the cases at bar as to
preclude me from taking part in their disposition, I can only say that I do not
believe there is any other Filipino in and out of the Court today who is not
equally situated as I am .
The matters that concern the Court in the instant petitions do not involve
merely the individual interests of any single person or group of persons.
Besides, the stakes in these cases affect everyone commonly, not individually.
The current of history that has passed through the whole country in the wake
of martial law has swept all of us, sparing none, and the problem of national
survival and of restoring democratic institutions and Ideals is seeking solution
in the minds of all of us. That I have preferred to discuss publicly my own
thoughts on the matter cannot mean that my colleagues in the Court have been
indifferent and apathetic about it, for they too are Filipinos. Articulated or not,
all of us must have our own preconceived Ideas and notions in respect to the
situation that confronts the country. To be sure, our votes and opinions in the-
major political cases in the recent past should more or less indicate our
respective basic positions relevant to the issues now before Us. Certainly,
contending counsels cannot be entirely in the dark in this regard. I feel that it
must have been precisely because of such awareness that despite my known
public participation in the discussion of the questions herein involved, none of
the parties have sought my inhibition or disqualification.
Actually, although it may be difficult for others to believe it, I have never
allowed my preconceptions and personal inclinations to affect the objectivity
needed in the resolution of any judicial question before the Court. I feel I have
always been able to appreciate, fully consider and duly weigh arguments and
points raised by all counsels, even when they conflict with my previous views.
I am never beyond being convinced by good and substantial ratiocination.
Nothing has delighted me more than to discover that somebody else has
thought of more weighty arguments refuting my own, regardless of what or
whose interests are at stake. I would not have accepted my position in the
Court had I felt I would not be able to be above my personal prejudices. To my
mind, it is not that a judge has preconceptions that counts, it is his capacity
and readiness to absorb contrary views that are indispensable for justice to
prevail. That suspicions of prejudgment may likely arise is unavoidable; but I
have always maintained that whatever improper factors might influence a
judge will unavoidably always appear on the face of the decision. In any event,
is there better guarantee of justice when the preconceptions of a judge are
concealed?
Withal, in point of law, I belong to the school of thought that regards members
of the Supreme Court as not covered by the general rules relative to
disqualification and inhibition of judges in cases before them. If I have in
practice actually refrained from participating in some cases, it has not been
because of any legal ground founded on said rules, but for purely personal
reasons, specially because, anyway, my vote would not have altered the
results therein.
It is my considered opinion that unlike in the cases of judges in the lower
courts, the Constitution does not envisage compulsory disqualification or
inhibition in any case by any member of the Supreme Court. The Charter
establishes a Supreme Court "composed of a Chief Justice and fourteen
Associate Justices", with the particular qualifications therein set forth and to
be appointed in the manner therein provided. Nowhere in the Constitution is
there any indication that the legislature may designate by law instances
wherein any of the justices should not or may not take part in the resolution of
any case, much less who should take his place. Members of the Supreme
Court are definite constitutional officers; it is not within the power of the
lawmaking body to replace them even temporarily for any reason. To put it the
other way, nobody who has not been duly appointed as a member of the
Supreme Court can sit in it at any time or for any reason. The Judicial power
is vested in the Supreme Court composed as the Constitution ordains - that
power cannot be exercised by a Supreme Court constituted otherwise. And
so, when as in the instant where, if any of the member of Court is to abstain
from taking part, there would be no quorum - and no court to render the
decision - it is the includible duty of all the incumbent justices to participate in
the proceedings and to cast their votes, considering that for the reasons stated
above, the provisions of Section 9 of the Judiciary Act do not appear to
conform with the concept of the office of Justice of the Supreme Court
contemplated in the Constitution.
The very nature of the office of Justice of the Supreme Court as the tribunal of
last resort and bulwark of the rights and liberties of all the people demands
that only one of dependable and trustworthy probity should occupy the same.
Absolute integrity, mental and otherwise, must be by everyone who is
appointed thereto. The moral character of every member of the Court must be
assumed to be such that in no case whatsoever. regardless of the issues and
the parties involved, may it be feared that anyone's life, liberty or property,
much less the national interests, would ever be in jeopardy of being unjustly
and improperly subjected to any kind of judicial sanction. In sum, every Justice
of the Supreme Court is expected to be capable of rising above himself in
every case and of having full control of his emotions and prejudices, such that
with the legal training and experience he must of necessity be adequately
equipped with, it would be indubitable that his judgment cannot be but
objectively impartial, Indeed, even the appointing power, to whom the Justices
owe their positions, should never hope to be unduly favored by any action of
the Supreme Court. All appointments to the Court are based on these
considerations, hence the ordinary rules on inhibition and disqualification do
not have to be applied to its members.
With the preliminary matter of my individual circumstances out of the way, I
shall now address myself to the grave issues submitted for Our resolution.
-I-
In regard to the first issue as to whether the questions posed in the petitions
herein are political or justiciable, suffice it for me to reiterate the fundamental
position I took in the Martial Law cases, 1 thus
As We enter the extremely delicate task of resolving the grave issues
thus thrust upon Us. We are immediately encountered by absolute
verities to guide Us all the way. The first and most important of them
is that the Constitution (Unless expressly stated otherwise, all
references to the Constitution in this discussion are to both the 1935
and 1973 charters, since, after all, the pertinent provisions are
practically Identical in both is the supreme law of the land. This means
among other things that all the powers of the government and of all its
officials from the President down to the lowest emanate from it. None
of them may exercise any power unless it can be traced thereto either
textually or by natural and logical implication. "The second is that it is
settled that the Judiciary provisions of the Constitution point to the
Supreme Court as the ultimate arbiter of all conflicts as to what the
Constitution or any part thereof means. While the other Departments
may adopt their own construction thereof, when such construction is
challenged by the proper party in an appropriate case wherein a
decision would be impossible without determining the correct
construction, the Supreme Court's word on the matter controls.
xxx xxx xxx
xxx xxx xxx
The fifth is that in the same manner that the Executive power conferred
upon the Executive by the Constitution is complete, total and
unlimited, so also, the judicial power vested in the Supreme Court and
the inferior courts, is the very whole of that power, without any
limitation or qualification.
xxx xxx xxx
xxx xxx xxx
From these incontrovertible postulates, it results, first of all, that the
main question before Us is not in reality one of jurisdiction, for there
can be no conceivable controversy, especially one involving a conflict
as to the correct construction of the Constitution, that is not
contemplated to be within the judicial authority of the courts to hear
and decide. The judicial power of the courts being unlimited and
unqualified, it extends over all situations that call for the as certainment
and protection of the rights of any party allegedly violated, even when
the alleged violator is the highest official of the land or the government
itself. It is, therefore, evidence that the Court's jurisdiction to take
cognizance of and to decide the instant petitions on their merits is
beyond challenge.
In this connection, however, it must be borne in mind that in the form
of government envisaged by the framers of the Constitution and
adopted by our people, the Court's indisputable and plenary authority
to decide does not necessarily impose upon it the duty to interpose its
fiat as the only means of settling the conflicting claims of the parties
before it. It is ingrained in the distribution of powers in the fundamental
law that hand in hand with the vesting of the judicial power upon the
Court, the Constitution has coevally conferred upon it the discretion to
determine, in consideration of the constitutional prerogatives granted
to the other Departments, when to refrain from imposing judicial
 solutions and instead defer to the judgment of the latter. It is in the
very nature of republican governments that certain matters are left in
the residual power of the people themselves to resolve, either directly
at the polls or thru their elected representatives in the political
Departments of the government. And these reserved matters are
easily distinguishable by their very nature, when one studiously
considers the basic functions and responsibilities entrusted by the
charter to each of the great Departments of the government. To cite
an obvious example, the protection, defense and preservation of the
state against internal or external aggression threatening its very
existence is far from being within the ambit of judicial responsibility.
The distinct role then of the Supreme Court of being the final arbiter in
the determination of constitutional controversies does not have to be
asserted in such contemplated situations, thereby to give way to the
ultimate prerogative of the people articulated thru suffrage or thru the
acts of their political representatives they have elected for the
purpose.
Indeed, these fundamental considerations are the ones that lie at the base of
what is known in American constitutional law as the political question doctrine,
which in that jurisdiction is unquestionably deemed to be part and parcel of the
rule of law, exactly like its apparently more attractive or popular opposite,
judicial activism, which is the fullest exertion of judicial power, upon the theory
that unless the courts intervene injustice might prevail. It has been invoked
and applied by this Court in varied forms and mode of projection in several
momentous instances in the past, (Barcelona vs. Baker, 5 Phil. 87; Severino
vs. Governor-General, 16 Phil. 366; Abueva vs. Wood, 45 Phil. 612;
Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag
vs. Lopez Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil. 654; Montenegro vs.
Castaneda, 91 Phil. 882, Santos vs. Yatco, 55 O.G. 8641 [Minute Resolution
of Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.) and it is the main
support of the stand of the Solicitor General on the issue of jurisdiction in the
cases at bar. It is also referred to as the doctrine of judicial self-restraint or
abstention. But as the nomenclatures themselves imply, activism and self-
restraint are both subjective attitudes, not inherent imperatives. The choice of
alternatives in any particular eventuality is naturally dictated by what in the
Court's considered opinion is what the Constitution envisions should be by in
order to accomplish the objectives of government and of nationhood. And
perhaps it may be added here to avoid confusion of concepts, that We are not
losing sight of the traditional approach based on the doctrine of separation of
powers. In truth, We perceive that even under such mode of rationalization,
the existence of power is secondary, respect for the acts of a co-ordinate, co-
equal and independent Department being the general rule, particularly when
the issue is not encroachment of delimited areas of functions but alleged abuse
of a Department's own basic prerogatives. (59 SCRA, pp. 379-383.)
Applying the foregoing considerations to the cases at bar, I hold that the Court
has jurisdiction to pass on the merits of the various claims of petitioners. At the
same time, however, I maintain that the basic nature of the issues herein
raised requires that the Court should exercise its constitutionally endowed
prerogative to refrain from exerting its judicial authority in the premises.
Stripped of incidental aspects, the constitutional problem that confronts Us
stems from the absence of any clear and definite express provision in the
Charter applicable to the factual milieu herein involved. The primary issue is,
to whom, under the circumstances, does the authority to propose amendments
to the Constitution property belong? To say, in the light of Section 15 of Article
XVII of the Charter, that that faculty lies in the interim National Assembly is to
beg the main question. Indeed, there could be no occasion for doubt or debate,
if it could ' only be assumed that the interim National Assembly envisaged in
Sections 1 and 2 of the same Article XVII may be convoked. But precisely, the
fundamental issue We are called upon to decide is whether or not it is still
constitutionally possible to convene that body. And relative to that question,
the inquiry centers on whether or not the political developments since the
ratification of the Constitution indicate that the people have in effect enjoined
the convening of the interim National Assembly altogether. On this score, it is
my assessment that the results of the referenda of January 10-15, 1973, July
27-28, 1973 and February 27, 1975 clearly show that the great majority of our
people, for reasons plainly obvious to anyone who would consider the
composition of that Assembly, what with its more than 400 members
automatically voted into it by the Constitutional Convention together with its
own members, are against its being convoked at all.
Whether or not such a manifest determination of the sentiments of the people
should be given effect without a formal amendment of the Constitution is
something that constitutional scholars may endlessly debate on. What cannot
be disputed, however, is that the government and the nation have acquiesced
to, it and have actually operated on the basis thereof. Proclamation 1103
which, on the predicate that the overwhelming majority of the people desire
that the interim Assembly be not convened, has ordained the suspension of its
convocation, has not been assailed either judicially or otherwise since the date
of its promulgation on January 17, 1973.
In these premises, it is consequently the task of the Court to determine what,
under these circumstances, is the constitutional relevance of the interim
National Assembly to any proposal to amend the Constitution at this time. It is
my considered opinion that in resolving that question, the Court must have to
grapple with the problem of what to do with the will of the people, which
although manifested in a manner not explicitly provided for in the Constitution,
was nevertheless official, and reliable, and what is more important clear and
unmistakable, despite the known existence of well-meaning, if insufficiently
substantial dissent. Such being the situation, I hold that it is not proper for the
Court to interpose its judicial authority against the evident decision of the
people and should leave it to the political department of the government to
devise the ways and means of resolving the resulting problem of how to amend
the Constitution, so long as in choosing the same, the ultimate constituent
power is left to be exercised by the people themselves in a well- ordered
plebiscite as required by the fundamental law.
-2-
Assuming We have to inquire into the merits of the issue relative to the
constitutional authority behind the projected amendment of the Charter in the
manner provided in Presidential Decree 1033, I hold that in the peculiar
situation in which the government is today, it is not incompatible with the
Constitution for the President to propose the subject amendments for
ratification by the people in a formal plebiscite under the supervision of the
Commission on Elections. On the contrary, in the absence of any express
prohibition in the letter of the Charter, the Presidential Decree in question is
entirely consistent with the spirit and the principles underlying the Constitution.
The correctness of this conclusion should become even more patent, when
one considers the political developments that the people have brought about
since the ratification of the Constitution on January 17,1973.
I consider it apropos at this juncture to repeat my own words in a speech I
delivered on the occasion of the celebration of Law Day on September 18,
1975 before the members of the Philippine Constitution Association and their
guests:
To fully comprehend the constitutional situation in the Philippines
today, one has to bear in mind that, as I have mentioned earlier, the
martial law proclaimed under the 1935 Constitution overtook the
drafting of the new charter by the Constitutional Convention of 1971.
It was inevitable, therefore, that the delegates had to take into account
not only the developments under it but, most of all, its declared
objectives and what the President, as its administrator, was doing to
achieve them. In this connection, it is worthy of mention that an
attempt to adjourn the convention was roundly voted down to signify
the determination of the delegates to finish earliest their work, thereby
to accomplish the mission entrusted to them by the people to introduce
meaningful reforms in our government and society. Indeed, the
constituent labors gained rapid tempo, but in the process, the
delegates were to realize that the reforms they were formulating could
be best implemented if the martial law powers of the President were
to be allowed to subsist even after the ratification of the Constitution
they were approving. This denouement was unusual. Ordinarily, a
constitution born out of a crisis is supposed to provide all the needed
cures and can, therefore, be immediately in full force and effect after
ratification. Not so, with our 1973 Constitution, Yes, according to the
Supreme Court, 'there is no more judicial obstacle to the new
Constitution being considered in force and effect', but in truth, it is not
yet so in full. Let me explain.
To begin with, in analyzing the new Constitution, we must be careful to
distinguish between the body or main part thereof and its transitory provisions.
It is imperative to do so because the transitory provisions of our Constitution
are extraordinary in the sense that obviously they have been designed to
provide not only for the transition of our government from the presidential form
under the past charter to a parliamentary one as envisaged in the new
fundamental law, but also to institutionalize, according to the President, the
reforms introduced thru the exercise of his martial law powers. Stated
differently, the transitory provisions, as it has turned out, has in effect
established a transition government, not, I am sure, perceived by many. It is a
government that is neither presidential nor parliamentary. It is headed, of
course, by President Marcos who not on retains all his powers under the 1935
Constitution but enjoys as well those of the President and the Prime Minister
under the new Constitution. Most importantly, he can and does legislate alone.
But to be more accurate, I should say that he legislates alone in spite of the
existence of the interim National Assembly unequivocally ordained by the
Constitution, for the simple reason that he has suspended the convening of
said assembly by issuing Proclamation No. 1103 purportedly 'in deference to
the sovereign will of the Filipino people' expressed in the January 10-15, 1973
referendum.
Thus, we have here the unique case of a qualified ratification. The whole
Constitution was submitted for approval or disapproval of the people, and after
the votes were counted and the affirmative majority known, we were told that
the resulting ratification was subject to the condition that the interim National
Assembly evidently established in the Constitution as the distinctive and
indispensable element of a parliamentary form of government should
nevertheless be not convened and that no elections should be held for about
seven years, with the consequence that we have now a parliamentary
government without a parliament and a republic without any regular election
of its officials. And as you can see, this phenomenon came into being not by
virtue of the Constitution but of the direct mandate of the sovereign people
expressed in a referendum. In other words, in an unprecedented extra-
constitutional way, we have established, wittingly or unwittingly, a direct
democracy through the Citizens Assemblies created by Presidential Decree
No. 86, which later on have been transformed into barangays, a system of
government proclaimed by the President as 'a real achievement in
participatory democracy.' What I am trying to say, my friends, is that as I
perceive it, what is now known as constitutional authoritarianism means, in the
final analysis, that the fundamental source of authority of our existing
government may not be necessarily found within the four corners of the
Constitution but rather in the results of periodic referendums conducted by the
Commission on Elections in a manner well known to all of us This, as I see it,
is perhaps what the President means by saying that under the new
Constitution he has extra-ordinary powers independently of martial law -
powers sanctioned directly by the people which may not even be read in the
language of the Constitution. in brief, when we talk of the rule of law nowadays,
our frame of reference should not necessarily be the Constitution but the
outcome of referendums called from time to time by the President. The sooner
we imbibe this vital concept the more intelligent will our perspective be in giving
our support and loyalty to the existing government. What is more, the clearer
will it be that except for the fact that all the powers of government are being
exercised by the President, we - do not in reality have a dictatorship but an
experimental type of direct democracy."
In the foregoing disquisition, I purposely made no mention of the referendum
of February 27, 1975. It is important to note, relative to the main issue now
before Us, that it was originally planned to ask the people in that referendum
whether or not they would like the interim National Assembly to convene, but
the Comelec to whom the task of preparing the questions was assigned was
prevailed upon not to include any -such question anymore, precisely because
it was the prevalent view even among the delegates to the Convention as well
as the members of the old Congress concerned that that matter had already
been finally resolved in the previous referenda of January and July 1973 in the
sense that. the Assembly should not be convened comparable to res
adjudicata.
It is my position that as a result of the political developments since January 17,
1973 the transitory provisions envisioning the convening of the interim National
Assembly have been rendered legally inoperative. There is no doubt in my
mind that for the President to convoke the interim National Assembly as such
would be to disregard the will of the people - something no head of a
democratic republican state like ours should do. And I find it simply logical that
the reasons that motivated the people to enjoin the convening of the Assembly
- the unusually large and unmanageable number of its members and the
controversial morality of its automatic composition consisting of all the
incumbent elective national executive and legislative officials under the Old
Constitution who would agree to join it and the delegates themselves to the
Convention who had voted in favor of the Transitory Provisions - apply not only
to the Assembly as an ordinary legislature but perhaps more to its being a
constituent body. And to be more realistic, it is but natural to conclude that
since the people are against politicians in the old order having anything to do
with the formulation of national policies, there must be more reasons for them
to frown on said politicians taking part in amendment of the fundamental law,
specially because the particular amendment herein involved calls for the
abolition of the interim National Assembly to which they belong and its
substitution by the Batasang Pambansa.
It is argued that in law, the qualified or conditional ratification of a constitution
is not contemplated. I disagree. It is inconsistent with the plenary power of the
people to give or withhold their assent to a proposed Constitution to maintain
that they can do so only wholly. I cannot imagine any sound principle that can
be invoked to support the theory that the proposing authority can limit the
power of ratification of the people. As long as there are reliable means by
which only partial approval can be manifested, no cogent reason exists why
the sovereign people may not do so. True it is that no proposed Constitution
can be perfect and it may therefore be taken with the good and the bad in it,
but when there are feasible ways by which it can be determined which portions
of it, the people disapprove. it would be stretching technicality beyond its
purported office to render the final authority - the people impotent to act
according to what they deem best suitable to their interests.
In any event, I feel it would be of no consequence to debate at length regarding
the legal feasibility of qualified ratification. Proclamation 1103 categorically
declares that:
WHEREAS, fourteen million nine hundred seventy six
thousand five hundred sixty-one (14,976.561) members of all
the Barangays voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand
eight hundred sixty-nine (743,869) who voted for its rejection;
but a majority of those who approved the new Constitution
conditioned their votes on the demand that the interim
National Assembly provided in its Transitory Provisions
should not be convened.
and in consequence, the President has acted accordingly by not convening
the Assembly. The above factual premises of Proclamation 1103 is not
disputed by petitioners. Actually, it is binding on the Court, the same being a
political act of a coordinate department of the government not properly
assailed as arbitrary or whimsical. At this point, it must be emphasized in
relation to the contention that a referendum is only consultative, that
Proclamation 1103, taken together with Proclamation 1102 which proclaimed
the ratification of the Constitution, must be accorded the same legal
significance as the latter proclamation, as indeed it is part and parcel if the Act
of ratification of the Constitution, hence not only persuasive but mandatory. In
the face of the incontrovertible fact that the sovereign people have voted
against the convening of the interim National Assembly, and faced with the
problem of amending the Constitution in order precisely to implement the
people's rejection of that Assembly, the problem of constitutional dimension
that confronts Us, is how can any such amendment be proposed for ratification
by the people?
To start with, it may not be supposed that just because the office or body
designed by the constitutional convention to perform the constituent function
of formulating proposed amendments has been rendered inoperative by the
people themselves, the people have thereby foreclosed the possibility of
amending the Constitution no matter how desirable or necessary this might
be. In this connection, I submit that by the very nature of the office of the
Presidency in the prevailing scheme of government we have - it being the only
political department of the government in existence - it is consistent with basic
principles of constitutionalism to acknowledge the President's authority to
perform the constituent function, there being no other entity or body lodged
with the prerogative to exercise such function.
There is another consideration that leads to the same conclusion. It is
conceded by petitioners that with the non-convening of the interim Assembly,
the legislative authority has perforce fallen into the hands of the President, if
only to avoid a complete paralysis of law-making and resulting anarchy and
chaos. It is likewise conceded that the provisions of Section 3 (2) of Article
XVII invest the President with legislative power for the duration of the transition
period. From these premises, it is safe to conclude that in effect the President
has been substituted by the people themselves in place of the interim
Assembly. Such being the case, the President should be deemed as having
been granted also the cognate prerogative of proposing amendments to the
Constitution. In other words, the force of necessity and the cognate nature of
the act justify that the department exercising the legislative faculty be the one
to likewise perform the constituent function that was attached to the body
rendered impotent by the people's mandate. Incidentally, I reject most
vehemently the proposition that the President may propose amendments to
the Constitution in the exercise of his martial law powers. Under any standards,
such a suggestion cannot be reconciled with the Ideal that a Constitution is the
free act of the people.
It was suggested during the oral, argument that instead of extending his
legislative powers by proposing the amendment to create a new legislative
body, the President should issue a decree providing for the necessary
apportionment of the seats in the Regular National Assembly and call for an
election of the members thereof and thus effect the immediate normalization
of the parliamentary government envisaged in the Constitution. While indeed
procedurally feasible, the suggestion overlooks the imperative need
recognized by the constitutional convention as may be inferred from the
obvious purpose of the transitory provisions, for a period of preparation and
acquaintance by all concerned with the unfamiliar distinctive features and
practices of the parliamentary system. Accustomed as we are to the
presidential system, the Convention has seen to it that there should be an
interim parliament under the present leadership, which will take the
corresponding measures to effectuate the efficient and smooth transition from
the present system to the new one. I do not believe this pattern set by the
convention should be abandoned.
The alternative of calling a constitutional convention has also been mentioned.
But, in the first place, when it is considered that whereas, under Section 1 (1)
and (2) of Article XVI, the regular National Assembly may call a Constitutional
Convention or submit such a call for approval of the people, Section 15 of
Article XVII, in reference to interim National Assembly, does not grant said
body the prerogative of calling a convention, one can readily appreciate that
the spirit of the Constitution does not countenance or favor the calling of a
convention during the transition, if only because such a procedure would be
time consuming, cumbersome and expensive. And when it is further noted that
the requirement as to the number of votes needed for a proposal is only a
majority, whereas it is three-fourths in respect to regular Assembly, and,
relating this point to the provision of Section 2 of Article XVI to the effect that
all ratification plebiscites must be held "not later than three months after the
approval" of the proposed amendment by the proposing authority, the adoption
of the most simple manner of amending the charter, as that provided for in the
assailed Presidential Decree 1033 suggests itself as the one most in accord
with the intent of the fundamental law.
There is nothing strange in adopting steps not directly based on the letter of
the Constitution for the purpose of amending or changing the same. To cite
but one important precedent, as explained by Mr. Justice Makasiar in his
concurring opinion in Javellana 2, the present Constitution of the United States
was neither proposed nor ratified in the manner ordained by the original charter
of that country, the Articles of Confederation and Perpetual Union.
In brief. if the convening and operation of the interim National Assembly has
been effectuated through a referendum-plebiscite in January, 1973, and
ratified expressly and impliedly in two subsequent referenda, those of July,
1973 and February, 1975, why may not a duly held plebiscite suffice for the
purpose of creating a substitute for that Assembly? It should be borne in mind
that after all, as indicated in the whereas of the impugned Presidential Decree,
actually, the proposed amendments were initiated by the barangays and
sanggunian members. In other words, in submitting the amendments for
ratification, the President is merely acting as the conduit thru whom a
substantial portion of the people, represented in the Katipunan ng Mga
Sanggunian, Barangay at Kabataang Barangay, seek the approval of the
people as a whole of the amendments in question. If all these mean that the
sovereign people have arrogated unto themselves the functions relative to the
amendment to the Constitution, I would regard myself as totally devoid of legal
standing to question it, having in mind that the most fundamental tenet on
which our whole political structure rests is that "sovereignty resides in the
people and all government authority emanates from them."
In the light of the foregoing considerations, I hold that Presidential Decree No.
1033 does not infringe the Constitution, if only because the specific provision
it is supposed to infringe does not exist in legal contemplation since it was
coevally made inoperative when the people ratified the Constitution on
January 17, 1973. I am fully convinced that there is nothing in the procedure
of amendment contained in said decree that is inconsistent with the
fundamental principles of constitutionalism. On the contrary, I find that the
Decree, in issue conforms admirably with the underlying tenet of our
government - the sovereignty and plenary power of the people.
On the issue of whether or not October 16, 1976 is too proximate to enable
the people to sufficiently comprehend the issues and intelligently vote in the
referendum and plebiscite set by Presidential Decree 1033, all I can say is that
while perhaps my other colleagues are right in holding that the period given to
the people is adequate, I would leave it to the President to consider whether
or not it would be wiser to extend the same. Just to avoid adverse comments
later I wish the President orders a postponement. But whether such
postponement is ordered or not, date of the referendum- plebiscite anywhere
from October 16, 1976 to any other later date, would be of no vital import.
In conclusion, I vote to dismiss all the three petitions before Us.
MAKASIAR, J., concurring and dissenting:
Since the validity or effectivity of the proposed amendments is to be decided
ultimately by the people in their sovereign capacity, the question is political as
the term is defined in Tanada, et al. vs. Cuenco, et al. (103 Phil. 1051), which
is a bar to any judicial inquiry, for the reasons stated in Our opinion in
Javellana, et al. vs. Executive Secretary, et al. (L-36142); Tan, et al. vs.
Executive Secretary, et al. (L,36164); Roxas, et al. vs Executive Secretary, et
al. (L-36165); Monteclaro, etc., et al. vs' Executive Secretary, et al. (@36236);
and Ditag et al. vs. Executive Secretary, et al. (L-W283, March 31, 1973, 50
SCRA 30, 204-283). The procedure for amendment is not important
Ratification by the people is all that is indispensable to validate an amendment.
Once ratified, the method of making the proposal and the period for submission
become relevant.
The contrary view negates the very essence of a republican democracy - that
the people are sovereign - and renders meaningless the emphatic declaration
in the very first provision of Article II of the 1973 Constitution that the
Philippines is a republican state, sovereignty resides in the people and all
government authority emanates from them. It is axiomatic that sovereignty is
illimitable The representatives cannot dictate to the sovereign people. They
may guide them; but they cannot supplant their judgment, Such an opposite
view likewise distrusts the wisdom of the people as much as it despises their
intelligence. It evinces a presumptuous pretension to intellectual superiority.
There are thousands upon thousands among the citizenry, who are not in the
public service, who are more learned and better skilled than many of their
elected representatives.
Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004, Jan.
31, 1975, 62 SCRA 275, 298-302) that the President as enforcer or
administrator of martial rule during the period of martial law can legislate; and
that he has the discretion as to when the convene the interim National
Assembly depending on prevailing conditions of peace and order. In view of
the fact that the interim National Assembly has not been convoked in
obedience to the desire of the people clearly expressed in the 1973 referenda,
the President therefore remains the lone law-making authority while martial
law subsists. Consequently, he can also exercise the power of the interim
National Assembly to propose amendments to the New Constitution (Sec.
15,,Art. XVII If, as conceded by petitioner Vicente Guzman (L-44684), former
delegate to the 1971 Constitutional Convention which drafted the 1973
Constitution. the President, during the period of martial law, can call a
constitutional convention for the purpose, admittedly a constituent power, it
stands to reason that the President can likewise legally propose amendments
to the fundamental law.
ANTONIO, J., concurring:
I
At the threshold, it is necessary to clarify what is a "political question". It must
be noted that this device has been utilized by the judiciary "to avoid
determining questions it is ill equipped to determine or that could be settled in
any event only with the effective support of the political branches." 1 According
to Weston, judges, whether "personal representatives of a truly sovereign king,
or taking their seats as the creatures of a largely popular sovereignty speaking
through a written constitution, derive their power by a delegation, which clearly
or obscurely as the case may be, deliminates and delimits their delegated
jurisdiction.* * * Judicial questions * * * are those which the sovereign has set
to be decided in the courts. Political questions, similarly, are those which the
sovereign has entrusted to the so-called political departments of government
or has reserved to be settled by its own extra-government or has reserved to
be settled by its own extra-governmental action." 2 Reflecting a similar concept,
this Court has defined a "political question" as a "matter which is to be
exercised by the people in their primary political capacity or that has been
specifically delegated to some other department or particular officer of the
government, with discretionary power to act." 3 In other words, it refers to those
questions which, under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the legislative or executive branch of government. 4
In determining whether an issue falls within the political question category, the
absence of satisfactory creterion for a judicial determination or the
appropriateness of attributing finality to the action of the political departments
of government is a dominant consideration. This was explained by Justice
Brennan in Baker v. Carr, 5 thus :
Prominent on the surface of any case held to involve political question
is found a textually demonstrable constitutional lack of judicially
discoverrable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or
the potentiality of embarrassment from from multifarious
pronouncements by various departments on one question. . . .
To decide whether a matter has in a measure been committed by the
Constitution to another branch of government or retained be the people to be
decided by them in their sovereign capacity, or whether that branch exceeds
whatever authority has been committed, is indeed a delicate exercise in
constitutional interpretation.
In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy
of the ratification by state legislatures of a constitutional amendment is a
political question. On the question of whether the State Legislature could
constitutionally relative an amendment, after the same had been previously
rejected by it, it was held that the ultimate authority over the question was in
Congress in the exercise of its control over the promulgation of the adoption
of the amendment. And in connection with the second question of whether the
amendment has lost its, vitality through the lapse of time, the Court held that
the question was likewise political, involving "as it does ... an appraisal of a
great variety of relevant conditions, political, social and economic, which can
hardly be said to be within the appropriate range of evidence receivable in a
court of justice and as to which it would be an extravagant extension of juridical
authority to assert judicial notice as the basis of deciding a controversy with
respect to the validity of an amendment actually ratified. On the other hand,
these conditions are appropriate for the consideration of the political
departments of the Government. The questions they involve are essentially
political and not justiciable." '
In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas
stressed that:
The Constitution grants Congress exclusive power to control
submission off constitutional amendments. Final
determination by Congress their ratification by three-fourths of
the States has taken place 'is conclusive upon the courts.' In
the exercise of that power, Congress, of course, is governed
by the Constitution. However, A whether submission,
intervening procedure for Congressional determination of
ratification conforms to the commands of the Constitution, call
for decisions by apolitical department of questions of a t@
which this Court has frequently designated 'political.' And
decision of a 'political question' by the political department' to
which the Constitution has committed it 'conclusively binds the
judges, as well as all other officers, citizens and subjects of ...
government. Proclamation under authority of Congress that
an amendment has been ratified will carry with it a solemn
assurance by the Congress that ratification has taken place
as the Constitution commands. Upon this assurance a
proclaimed amendment must be accepted as a part of the
Constitution, learning to the judiciary its traditional authority of
interpretation. To the extent that the Court's opinion in the
present case even by implieding assumes a power to make
judicial interpretation of the exclusive constitutional authority
of Congress over submission and by ratification of
amendments, we are unable to agree.
Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in
Mabanag v. Lopez Vitol, 7 speaking through Mr. Justice Pedro Tuason, ruled
that the process of constitutional amendment, involving proposal and
ratification, is a political question. In the Mabang case, the petitioners sought
to prevent the enforcement of a resolution of Congress proposing the "Parity
Amendment" to the Philippine Constitution on the ground that it had not been
approved by the three-fourths vote of all the members of each house as
required be Article XV of the 1935 Constitution. It was claimed that three (3)
Senators and eight (8) members of the House of Representatives had been
suspended and that their membership was not considered in the determination
of the three- fourths %- ore In dismissing the petition on the ground that the
question of the validity of the proposal was political, the Court stated:
"If ratification of an amendment is a political question, a proposal which leads
to ratification has to be a political question. The question to steps complement
each other in a scheme intended to achieve a single objective. It is to be noted
that amendatory process as provided in Section I of Article XV of the Philippine
Constitution 'consists of (only) two distinct parts: proposal and ratification.'
There is no logic in attaching political character to one and withholding that
character from the other. Proposal to amend the Constitution is a highly
political function performed by the Congress in its sovereign legislative
capacity and committed to its charge by the Constitution itself. ..." (At pages 4-
5, Italics supplied.)
It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether
or not a Resolution of Congress, acting as a constituent assembly - violates
the Constitution is essentially justiciable, not political, and hence, subject to
judicial review." What was involved in Gonzales, however, was not a proposed
What was involved in Gonzales, however, was not a proposed amendment to
the Constitution but an act of Congress, 9 submitting proposed amendments to
the Constitution. Similarly, in Tolentino v. Commission an Elections, 10 what
was involved was not the validity of the proposal to lower the voting age but
rather that of the resolution of the Constitutional Convention submitting the
proposal for ratification. The question was whether piecemeal amendments to
the Constitution could submitted to the people for approval or rejection.
II
Here, the point has been stressed that the President is acting as agent for and
in behalf of the people in proposing the amendment. there can be no question
that in the referendums of January, 1973 and in the subsequent referendums
the people had clearly and categorically rejected the calling of the interim
National Assembly. As stated in the main opinion, the Lupang
Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang
Katipunan ng mga Barangay, representing 42,000 barangays, the Kabataang
Barangay organizations and the various sectoral groups had proposed the
replacement of the interim National Assembly. These barangays and the
Sanggunian assemblies are effective instrumentalities through which the
desires of the people are articulated and expressed. The Batasang Bayan
(Legislative Council), composed of nineteen (19) cabinet members and nine
(9) officials with cabinet rank, and ninety-one (91) members of the Lupang
Tagapagpaganap (Executive Committee) of the Katipunan ng mga
Sangguniang Bayani voted in their special session to submit directly to the
people in a plebiscite on October 16, 1976 the afore-mentioned constitutional
amendments. Through the Pambansang Katipunan by Barangay and the
Pampurok ng Katipunan Sangguniang Bayan, the people have expressed their
desire not only to abolish the interim National Assembly, but to replace it with
a more representative body acceptable to them in order to effect the desirable
constitutional changes necessary to hasten the political evolution of the
government towards the parliamentary system, while at the same time
ensuring that the gains of the New Society, which are vital to the welfare of the
people, shall be safeguarded. The proposed constitutional amendments,
therefore, represent a consensus of the people.
It would be futile to insist that the intemi National Assembly should have been
convened to propose those amendments pursuant to Section 15 of Article XVII
of the Constitution. This Court, in the case of Aquino v. Commission or
Elections, 11 took judicial notice of the fact that in the referendum of January,
1973, a majority of those who approved the new Constitution conditioned their
votes on the demand that the interim National Assembly provided in the
Transitory Provisions should not be and the President "in deference to the
sovereign will of the Filipino people" declared that the convening of said body
shall be suspended. 12 As this Court observed in the Aquino case:
His decision to defer the initial convocation of the byiitttit National
Assembly was supported by the sovereign people at the by
referendum in January, 1973 when the people voted to postpone the
convening of the interim National Assembly until after at least seven
(7) years from the approval of the new Constitution. And the reason
why the same question was eliminated from the questions to be
submitted at the referendum on February 27, 1975, is that even some
members of the Congress and delegates of the Constitutional
Convention, who are already byjso ofitto members of the intetini
National Assembly are against such inclusion; because the issue was
already bycciled in the January, 1973 referendum by the sovereign
people indicating thereby their disenchantment with any Assembly as
the former Congress failed to institutionalize the reforms they
demanded and wasted public funds through endless debates without
relieving the suffering of the general mass of citizenry (p. 302.) The
action of the President in suspending the convening of the interim
National Assembly has met the overwhelming approval of the people
in subsequent referenda.
Since it was the action by the people that gave binding force and effect to the
new Constitution, then it must be accepted as a necessary consequence that
their objection against the immediate convening of the interim National
Assembly must be respected as a positive mandate of the sovereign.
In the Philippines, which is a unitary state, sovereignty "resides in the people
and all government authority emanates from them."13 The term "People" as
sovereign is comprehensive in its context. The people, as sovereign creator of
all political reality, is not merely the enfranchised citizens but the political unity
of the people. 14 It connotes, therefore, a people which exists not only in the
urgent present but in the continuum of history. The assumption that the opinion
of The People as voters can be treated as the expression of the interests of
the People as a historic community was, to the distinguished American
journalist and public philosopher, Walter Lipunan, unwarranted.
Because of the discrepancy between The People as Voters and the
People as the corporate nation, the voters have no title to consider
themselves the proprietors of the commonwealth and to claim that
their interests are Identical to the public interest. A prevailing plurality
of the voters are not The People. The claim that they are is a bogus
 title invoked to justify the usurpation of the executive power by
representative assemblies and the intimidation of public men by
demagogue politicians. In fact demagoguery can be described as the
sleight of hand by which a faction of The People as voters are invested
with the authority of The People. That is why so many crimes are
committed in the People's name 15
In Gonzales v. Comelec, supra, the Court clearly emphasized that the power
to propose amendments or to amend the Constitution is part of the inherent
power of the people as the repository of sovereignty in a republican state.
While Congress may propose amendments to the Constitution, it acts pursuant
to authority granted to it by the people through the Constitution. Both the power
to propose and the authority to approve, therefore, inhere in the people as the
bearer of the Constitution making power.
Absent an interim National Assembly upon whom the people, through the
Constitution, have delegated the authority to exercise constituent powers, it
follows from necessity that either the people should exercise that power
themselves or through any other instrumentality they may choose. For Law,
like Nature, abhors a vacuum (natural vacuum abhorret).
The question then is whether the President has authority to act for the people
in submitting such proposals for ratification at the plebiscite of October 16. The
political character of the question is, therefore, particularly manifest,
considering that ultimately it is the people who will decide whether the
President has such authority. It certainly involves a matter which is to be
exercised by the people in their sovereign capacity, hence, it is essentially
political, not judicial.
While it is true that the constituent power is not to be confuse with legislative
power in general because the prerogative to propose amendments is not
embraced within the context of ordinary lawmaking, it must be noted that the
proposals to be submitted for ratification in the forthcoming referendum are, in
the final analysis, actually not of the President but directly of the people
themselves, speaking through their authorized instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in this case:
... The President merely formalized the said proposals in Presidential
Decree No. 1033. It being conceded in all quarters that sovereignty
resides in the people and it having been demonstrated that their
constituent power to amend the Constitution has not been delegated
by them to any instrumentality of the Government during the present
stage of the transition period of our political development, the
conclusion is ineluctable that their exertion of that residuary power
cannot be vulnerable to any constitutional challenge as
beingultravires. Accordingly, without venturing to rule on whether or
not the President is vested with constituent power - as it does not
appear necessary to do so in the premises - the proposals here
challenged, being acts of the sovereign people no less, cannot be said
to be afflicted with unconstitutionality. A fortiori, the concomitant
authority to call a plebiscite and to appropriate funds therefor is even
less vulnerable not only because the President, in exercising said
authority, has acted as a mere ofiffet byf of the people who made the
proposals, but likewise because the said authority is legislative in
nature rather than constituent.
This is but a recognition that the People of the Philippines have the
inherent, sole and exclusive right of regulating their own government,
and of altering or abolishing their Constitution whenever it may be
necessary to their safety or happiness. There appears to be no
justification, under the existing, circumstances, for a Court to create
by implication a limitation on - the sovereign power of the people. As
has been clearly explained in a previous case:
There is nothing in the nature of the submission which should cause
the free exercise of it to be obstructed, or that could render it
dangerous to the stability of the government; because the measure
derives all its vital force from the action of the people at the ballot box,
and there can never be danger in submitting in an established form to
a free people, the proposition whether they will change their
fundamental law The means provided for the exercise of their
Sovereign right of changing their constitution should receive such a
construction as not to trammel the exercise of the right. Difficulties and
embarrassments in its exercise are in derogation of the right of free
government, which is inherent in the people; and the best security
against tumult and revolution is the free and unobstructed privilege to
the people of the State to change their constitution in the mode
prescribed by the instrument.
III
The paramount consideration that impelled Us to arrive at the foregoing
opinion is the necessity of ensuring popular control over the constituent power.
"If the people are to control the constituent power - the power to make and
change the fundamental law of the State," observed Wheeler," "the process of
Constitutional change must not be based too heavily upon existing agencies
of government." Indeed, the basic premise of republicanism is that the ordinary
citizen, the common man. can be trusted to determine his political destiny.
Therefore, it is time that the people should be accorded the fullest opportunity
to decide the laws that shall provide for their governance. For in the ultimate
analysis, the success of the national endeavor shall depend on the vision,
discipline and I by ininess of the moqqqtai will of every Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the
petitions.
Aquino, J., concur.
MUNOZ PALMA, J., dissenting:
I concur fully with the remarkably frank (so characteristic of him) dissenting
opinion of my distinguished colleague, Justice Claudio Teehankee. If I am
writing this brief statement it is only to unburden myself of some thoughts which
trouble my mind and leave my conscience with no rest nor peace.
Generally, one who dissents from a majority view of the Court takes a lonely
and at times precarious road, the burden byeing lightened only by the thought
that in this grave task of administering justice, when matters of conscience are
at issue, one must be prepared to espouse and embrace a rightful cause
however unpopular it may be.
1. That sovereignty resides in the people and all government authority
emanates from them is a fundamental, basic principle of government which
cannot be disputed, but when the people have opted to govern themselves
under the mantle of a written Constitution, each and every citizen, from the
highest to the lowliest, has the sacred duty to respect and obey the Character
they have so ordained.
By the Constitution which they establish, they not only tie up he hands
of their official agencies, but their own hands as well; and neither the
officers of the state, nor the whole people as an aggregate body, are
at liberty to take action in opposition to this fundamental law. (Cooley's
Constitutional Limitations, 7th Ed. p. 56, Italics Our).
The afore-quoted passage from the eminent jurist and author Judge Cooley
although based on declarations of law of more than a century ago, lays down
a principle which to my mind is one of the enduring cornerstones of the Rule
of Law. it is a principle with which I have been familiar as a student of law
under the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice
Jose P. Laurel, and which I pray will prevail at all times to ensure the existence
of a free, stable, and civilized society.
The Filipino people,. wanting to ensure to themselves a democratic republican
form of government, have promulgated a Constitution whereby the power to
govern themselves has been entrusted to and distributed among three
branches of government; they have also mandated in clear and unmistakable
terms the method by which provisions in their fundamental Charter may be
amended or revised. Having done so, the people are bound by these
constitutional limitations. For while there is no surrender or abdication of the
people's ultimate authority to amend, revise, or adopt a new Constitution,
sound reason demands that they keep themselves within the procedural
bounds of the existing fundamental law. The right of the people to amend or
change their Constitution if and when the need arises is not to be denied, but
we assert that absent a revolutionary state or condition in the country the
change must be accomplished through the ordinary, regular and legitimate
processes provided for in the Constitution.'
I cannot subscribe therefore to the view taken by the Solicitor General that the
people, being sovereign, have the authority to amend the Constitution even in
a manner different from and contrary to that expressly provided for in that
instrument, and that the amendatory process is intended more as a limitation
of a power rather than a grant of power to a particular agency and it should not
be construed as limiting the ultimate sovereign will of the people to decide on
amendments to the Constitution .2 Such a view will seriously undermine the
very existence of a constitutional government and will permit anarchy and/or
mob rule to set afoot and prevail. Was it the Greek philosopher Plato who
warned that the rule of the mob is a prelude to the rule of the tyrant?
I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine
Constitution, Notes and Cases" as relevant to my point:
. . . the amendatory provisions are called a 'constitution of sovereighty'
because they define the constitutional meaning of 'sovereignty of the
people.' Popular sovereignty, as embodied in the Philippine
Constitution, is not extreme popular sovereignty. As one American
writer put it:
A constitution like the American one serves as a basic check upon the
popular will at any given time. It is the distinctive function of such
written document to classify certain things as legal fundamentals;
these fundamentals may not be changed except by the slow and
cumbersome process of amendment. The people themselves have
decided, in constitutional convention assembled, to limit themselves
ana future generations in the exercise of the sovereign power which
they would otherwise possess. And it is precisely such limitation that
enables those subject to governmental authority to appeal from the
people drunk to the people sober in time of excitement and hysteria.
The Constitution, in the neat phrase of the Iowa court, is the protector
of the people against injury by the .people. *
Truly, what need is there for providing in the Constitution a process by which
the fundamental law may be amended if, after all, the people by themselves
can set the same at naught even in times of peace when civil authority reigns
supreme? To go along with the respondents' theory in this regard is to render
written Constitutions useless or mere "ropes of sand allowing for a government
of men instead of one of laws. For it cannot be discounted that a situation may
arise where the people are heralded to action at a point of a gun or by the fiery
eloquence of a demagogue, and where passion overpowers reason, and mass
action overthrows legal processes. History has recorded such instances, and
I can think of no better example than that of Jesus Christ of Judea who was
followed and loved by the people while curing the sick, making the lame walk
and the blind see, but shortly was condemned by the same people turned into
fanatic rabble crying out "Crucify Him, Crucify Him" upon being incited into
action by chief priests and elders of Jerusalem. Yes, to quote once more from
Judge Cooley:
A good Constitution should be beyond the reason of temporary
excitement and popular caprice or passion. It is needed for stability
and steadiness; it must yield to the thought of the people; not to the
whim of the people, or the thought evolved in excitement or hot blood,
but the sober second thought, which alone, if the government is to be
sale can be allowed efficiency. .... Changes in government are to be
feared unless the benefit is certain." (quoted in Ellingham v. Dye, 99
N.E. 1, 15,) 3
Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v.
Hall, 159 N.W., 281; Opinion of Marshall, J. in State ex. rel. Poster v. Marcus,
152 N.W., 419;
From Kochier v. Hill, Vol. 15, N.W., 609, we quote:
xxx xxx xxx
It has been said that changes in the constitution may be introduced in
disregard of its provisions; that if the majority of the people desire a
change the majority must be respected, no matter how the change
may be effected; and that the change, if revolution, is peaceful
resolution. ...
We fear that the advocates of this new doctrine, in a zeal to
accomplish an end which the majority of the people desire, have
looked at but one phase of the question, and have not fully considered
the terrible consequences which would almost certainly follow a
recognition of the doctrine for which they contend. It may be that the
incorporation of this amendment in the constitution, even if the
constitution has to be broken to accomplish it, would not of itself
produce any serious results. But if it should be done by sanctioning
the doctrine contended for, a precedent would be set which would
plague the state for all future time. A Banquo's ghost would arise at
our incantation which would not down at our bidding.
xxx xxx xxx
We ought to ponder long before we adopt a doctrine so fraught with
danger to republican institutions. ...
xxx xxx xxx
Appellants' counsel cite and rely upon section 2, art. 1, of the constitution of
the staff This section is a portion of the bill of rights, and is as follows: 'All
political power is inherent in the people. Government is instituted for the
protection, security, and benefit of of the people; and they have the right at all
times to alter or reform the same, whenever the public good may require.'
Abstractly considered, there can bye no doubt of the correctness of the
propositions embraced in this suction. These principles are older than
constitutions and older than governments. The people did not derive the rights
referred to by on the constitution. and, in their nature, thee are such that the
people cannot surrender them ... .
2. Presidential Decrees Nos. 991 and 1033 which call for a national
referendum-plebiscite on October 16, 1976 for the purpose, among other
things, of amending certain provisions of the 1973 Constitution are null and
void as they contravene the express provisions on the amending process of
the 1973 Constitution laid down in Article XVI, Section 1 (1) and Article XVII,
Section 15, more particularly the latter which applies during the present
transition period. The Opinion of Justice Teehankee discusses in detail this
particular matter.
I would just wish to stress the point that although at present there is no by
tterint National Assembly which may propose amendments to the Constitution,
the existence of a so-called "vacuum" or "hiatus" does not justify a
transgression of the constitutional provisions on the manner of amending the
fundamental law. We cannot cure one infirmity - the existence of a "vacuum"
caused by the non-convening of the interim National Assembly - with another
infirmity, that is, doing violence to the Charter.
All great mutations shake and disorder a state. Good does not
necessarily succeed evil; another evil may succeed and a worse. (Am.
Law Rev. 1889, p. 311., quoted in Ellingham v. Dye, supra, p. 15)
Respondents contend that the calling of the referendum-plebiscite for the
purpose indicated is a step necessary to restore the state of normalcy in the
country. To my mind, the only possible measure that will lead our country and
people to a condition of normalcy is the lifting or ending of the state of martial
law. If I am constrained to make this statement it is because so much stress
was given during the hearings of these cases on this particular point, leaving
one with the impression that for petitioners to contest the holding of the
October 16 referendum-plebiscite is for them to assume a position of blocking
or installing the lifting of martial law, which I believe is unfair to the petitioners.
Frankly, I cannot see the connection between the two. My esteemed
colleagues should pardon me therefore if I had ventured to state that the
simple solution to the simple solution to the present dilemma is the lifting of
martial law and the implementation of the constitutional provisions which will
usher in the parliamentary form of government ordained in the Constitution,
which, as proclaimed in Proclamation 1102, the people themselves have
ratified.
If the people have indeed ratified the 1973 Constitution, then they are bound
by their act and cannot escape from the pretended unfavorable consequences
thereof, the only y being to set in motion the constitutional machinery by which
the supposed desired amendments may properly be adopted and submitted
to the electorate for ratification. Constitutional processes are to be observed
strictly, if we have to maintain and preserve the system of government decreed
under the fundamental Charter. As said by Justice Enrique Fernando in Mutuc
vs. Commission on Elections
... The concept of the Constitution as the fundamental law, setting forth
the criterion for the validity of any public act whether proceeding from
the highest official or the lowest funcitonary, is a postulate of our
system of government. That is to manifest fealty to the rule of law, with
priority accorded to that which occupies the topmost rung in the legal
hierarchy. ... (36 SCRA, 228, 234, italics Ours)
A contrary view would lead to disastrous consequences for, in the words of
Chief Justice Cox of the Supreme Court of Indiana in Ellingham v. Dye, (supra,
p. 7) liberty and popular sovereignty are not meant to give rein to passion or
thoughtless impulse but to allow the exercise of power by the people for the
general good by tistlercoitaitt restraints of law. 3 . The true question before Us
is is one of power. Does the incumbent President of the Philippines possess
constituent powers? Again, the negative answer is explained in detail in the
dissenting opinion of Justice Teehankee.
Respondents would justify the incumbent President's exercise of constituent
powers on theory that he is vested with legislative powers as held by this Court
in Benigno S. Aquino, Jr., et al. vs. Commission on Elections, et al., L-40004,
January 31, 1975. 1 wish to stress that although in my separate opinion in said
case I agreed that Section 3 (2) of the Transitory provisions grants to the
incumbent President legislative powers, I qualified my statement as follows:
.... As to, whether, or not, this unlimited legislative qqqjwwel of the
President continues by exist even after the ratification of the
Constitution is a matter which I am not ready to concede at the
moment, and which at any rate I believe is not essential in resolving
this Petition for reasons to be given later. Nonetheless, I hold the view
that the President is empowered to issue proclamations, orders,
decrees, etc. to carry out and implement the objectives of the
proclamation of martial law be it under the 1935 or 1973 Constitution,
and for the orderly and efficient functioning of the government, its
instrumentalities, and agencies. This grant of legislative power is
necessary to fill up a vacuum during the transition period when the
interim National Assembly is not yet convened and functioning, for
otherwise, there will be a disruption of official functions resulting in a
collapse of the government and of the existing social order. (62 SCRA,
pp. 275,347)
I believe it is not disputed that legislative power is essentially different from
constituent power; one does not encompass the other unless so specified in
the Charter, and the 1973 Constitution contains provisions in this regard. This
is well-explained in Justice Teehankee's Opinion. The state of necessity
brought about by the current political situation, invoked by the respondents,
provides no source of power to propose amendments to the existing
Constitution. Must we "bend the Constitution to suit the law of the hour or cure
its defects "by inflicting upon it a wound which nothing can heal commit one
assault after the other "until all respect for the fundamental law is lost and the
powers of government are just what those in authority please to call
them?'" 5 Or can we now ignore what this Court, speaking through Justice
Barredo, said in Tolentino vs. Comelec:
... let those who would put aside, invoking grounds at best
controversial, any mandate of the fundamental law purportedly by
order to attain some laudable objective bear in mind that someday
somehow others with purportedly more laudable objectives may take
advantages of the precedent in continue the destruction of the
Constitution, making those who laid down the precedent of justifying
deviations from the requirements of the Constitution the victims of their
own folly. 6
Respondents emphatically assert that the final word is the people's word and
that ultimately it is in the hands of the people where the final decision rests.
(Comment, pp. 18, 19, 22) Granting in gratia argument that it is so, let it be an
expression of the will of the people a normal political situation and not under
the aegis of martial rule for as I have stated in Aquino vs. Comelec, et al.,
supra, a referendum (and now a plebiscite) held under a regime of martial law
can be of no far reaching significance because it is being accomplished under
an atmosphere or climate of fear as it entails a wide area of curtailment and
infringement of individual rights, such as, human liberty, property rights, rights
of free expression and assembly, protection against unreasonable searches
and seizures, liberty of abode and of travel, and so on.
4. The other issues such as the sufficiency and proper submission of the
proposed amendments for ratification by the people are expounded in Justice
Teehankee's Opinion. I wish to stress indeed that it is incorrect to state that
the thrust of the proposed amendments is the abolition of the interim National
Assembly and its substitution with an "interim Batasang Pambansa their in by
in Proposed amendment No. 6 will permit or allow the concentration of power
in one man - the Executive - Prime Minister or President or whatever you may
call him - for it gives him expressly (which the 1973 Constitution or the 1935
Constitution does not) legislative powers even during the existence of the
appropriate legislative body, dependent solely on the executive's judgment on
the existence of a grave emergency or a threat or imminence thereof **
I must be forgiven if, not concerned with the present, I am haunted however
by what can happen in the future, when we shall all be gone. Verily, this is a
matter of grave concern which necessitates full, mature, sober deliberation of
the people but which they can do only in a climate of freedom without the
restraints of martial law. I close, remembering what Claro M. Recto, President
of the Constitutional Convention which drafted the 1935 Philippine
Constitution, once said: .
... Nor is it enough that our people possess a written constitution in
order that their government may be called constitutional. To be
deserving of this name, and to drive away all lanirer of anarchy as well
as of dictatorship whether by one man or a few, it is necessary that
both the government authorities and the people faithfully observe and
obey the constitution, and that the citizens be duly conversant not only
with their rights but also with their duties... 7
Jose P. Laurel who served his people as Justice of the Supreme Court of this
country gave this reminder; the grave and perilous task of halting
transgressions and vindicating cherished rights is reposed mainly oil the
Judiciary and therefore let the Courts be the vestal keepers of the purity and
sanctity of our Constitution.' On the basis of the foregoing, I vote to declare
Presidential Decrees Nos. 991 and 1033 unconstitutional and enjoin the
implementation thereof.
CONCEPCION JR., J., concurring:
I vote for the dismissal of the petitions.
1. The issue is not political and therefore justiciable.
The term "political question", as this Court has previously defined, refers to
those questions which, under the constitution, are to be decided by the people
in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the Government. It is
concerned with the issues dependent upon the wisdom, not legality, of a
particular measure. 1
Here, the question raised is whether the President has authority to propose to
the people amendments to the Constitution which the petitioners claim is
vested solely upon the National Assembly, the constitutional convention called
for the purpose, and the by the National Assembly. This is not a political
question since it involves the determination of conflicting claims of authority
under the constitution.
In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or not a
Resolution of Congress, acting as a constituent assembly, violates the
Constitution, ruled that the question is essentially justiciable, not political, and
hence, subject to judicial review.
In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to its
position regarding its jurisdiction vis-a-vis the constitutionality of the acts of
Congress, acting as a constituent assembly, as well as those of a constitutional
convention called for the purpose of proposing amendments to the
constitution. Insofar as observance of constitutional provisions on the
procedure for amending the constitution is concerned, the issue is cognizable
by this Court under its powers of judicial review.
2. As to the merits, a brief backdrop of the decision to hold the referendum-
plebiscite will help resolve the issue. It is to be noted that under the 1973
Constitution, an interim National Assembly was organized to bring about an
orderly transition from the presidential to the parliamentary system of
government.' The people, however, probably distrustful of the members who
are old time politicians and constitutional delegates who had voted themselves
by to membership in the interim National Assembly, voted against the
convening of the said interim assembly for at least seven years thus creating
a political stalemate and a consequent delay' in the transformation of the
government into the parliamentary system. To resolve the impasse, the
President, at the instance of the barangays and sanggunian assemblies
through their duly authorized instrumentalities who recommended a study of
the feasibility of abolishing and replacing the by interim National Assembly with
another interim body truly representative of the people in a reformed society,
issued Presidential Decree No. 991, on September 2, 1976, calling for a
national referendum on October -16, 1976 to ascertain the wishes of the
people as to the ways and means that may be available to attain the objective;
providing for a period of educational and information campaign on the issues;
and establishing the mechanics and manner for holding thereof. But the
people, through their barangays, addressed resolutions to the Batasang
Bayan, expressing their desire to have the constitution amended, thus
prompting the President to issue Presidential Decree No. 1033, stating the
questions to @ submitted to the people in the referendum-plebiscite on
October 16,1976.

As will be seen, the authority to amend the Constitution was removed from the
interim National Assembly and transferred to the seat of sovereignty itself.
Since the Constitution emanates from the people who are the repository of all
political powers, their authority to amend the Constitution through the means
they have adopted, aside from those mentioned in the Constitution, cannot be
gainsaid. Not much reflection is also needed to show that the President did not
exercise his martial law legislative powers when he proposed the amendments
to the Constitution. He was merely acting as an instrument to carry out the will
of the people. Neither could he convene the interim National Assembly, as
suggested by the petitioners, without doing violence to the people's will
expressed overwhelmingly when they decided against convening the interim
assembly for at least seven years.

3. The period granted to the people to consider the proposed amendments is
reasonably long and enough to afford intelligent discussion of the issues to be
voted upon. PD 991 has required the barangays to hold assemblies or
meetings to discuss and debate on the referendum questions, which in fact
they have been doing. Considering that the proposed amendments came from
the representatives of the people themselves, the people must have already
formed a decision by this time on what stand to take on the proposed
amendments come the day for the plebiscite. Besides, the Constitution itself
requires the holding of a plebiscite for the ratification of an amendment not
later than three (3) months after the approval of such amendment or revision
but without setting a definite period within which such plebiscite shall not be
held. From this I can only conclude that the framers of the Constitution desired
that only a short period shall elapse from the approval of such amendment or
resolution to its ratification by the people.
G.R. No. 157013 July 10, 2003
ATTY. ROMULO B. MACALINTAL, petitioner,
vs.
COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his official
capacity as Executive Secretary, and HON. EMILIA T. BONCODIN,
Secretary of the Department of Budget and Management, respondents.
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and prohibition filed by Romulo B.
Macalintal, a member of the Philippine Bar, seeking a declaration that certain
provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of
2003)1 suffer from constitutional infirmity. Claiming that he has actual and
material legal interest in the subject matter of this case in seeing to it that public
funds are properly and lawfully used and appropriated, petitioner filed the
instant petition as a taxpayer and as a lawyer.

The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee
Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds
Therefor, and for Other Purposes," appropriates funds under Section 29
thereof which provides that a supplemental budget on the General
Appropriations Act of the year of its enactment into law shall provide for the
necessary amount to carry out its provisions. Taxpayers, such as herein
petitioner, have the right to restrain officials from wasting public funds through
the enforcement of an unconstitutional statute.2 The Court has held that they
may assail the validity of a law appropriating public funds 3 because
expenditure of public funds by an officer of the State for the purpose of
executing an unconstitutional act constitutes a misapplication of such funds. 4
The challenged provision of law involves a public right that affects a great
number of citizens. The Court has adopted the policy of taking jurisdiction over
cases whenever the petitioner has seriously and convincingly presented an
issue of transcendental significance to the Filipino people. This has been
explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng
Pilipinas, Inc. vs. Tan,5 where the Court held:
Objections to taxpayers suit for lack of sufficient personality standing,
or interest are, however, in the main procedural matters. Considering
the importance to the public of the cases at bar, and in keeping with
the Courts duty, under the 1987 Constitution, to determine whether or
not the other branches of government have kept themselves within the
limits of the Constitution and the laws and that they have not abused
the discretion given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance of these
petitions.6
Indeed, in this case, the Court may set aside procedural rules as the
constitutional right of suffrage of a considerable number of Filipinos is involved.
The question of propriety of the instant petition which may appear to be visited
by the vice of prematurity as there are no ongoing proceedings in any tribunal,
board or before a government official exercising judicial, quasi-judicial or
ministerial functions as required by Rule 65 of the Rules of Court, dims in light
of the importance of the constitutional issues raised by the petitioner. In
Taada vs. Angara,7 the Court held:
In seeking to nullify an act of the Philippine Senate on the ground that
it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where 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.
"The question thus posed is judicial rather than political. The duty (to
adjudicate) remains to assure that the supremacy of the Constitution
is upheld." Once a "controversy as to the application or interpretation
of constitutional provision is raised before this Court (as in the instant
case), it becomes a legal issue which the Court is bound by
constitutional mandate to decide."
In another case of paramount impact to the Filipino people, it has been
expressed that it is illogical to await the adverse consequences of the law in
order to consider the controversy actual and ripe for judicial resolution.8 In yet
another case, the Court said that:
. . . despite the inhibitions pressing upon the Court when confronted
with constitutional issues, it will not hesitate to declare a law or act
invalid when it is convinced that this must be done. In arriving at this
conclusion, its only criterion will be the Constitution and God as its
conscience gives it in the light to probe its meaning and discover its
purpose. Personal motives and political considerations are
irrelevancies that cannot influence its decisions. Blandishment is as
ineffectual as intimidation, for all the awesome power of the Congress
and Executive, the Court will not hesitate "to make the hammer fall
heavily," where the acts of these departments, or of any official, betray
the peoples will as expressed in the Constitution . . .9
The need to consider the constitutional issues raised before the Court is further
buttressed by the fact that it is now more than fifteen years since the ratification
of the 1987 Constitution requiring Congress to provide a system for absentee
voting by qualified Filipinos abroad. Thus, strong reasons of public policy
demand that the Court resolves the instant petition10 and determine whether
Congress has acted within the limits of the Constitution or if it had gravely
abused the discretion entrusted to it.11
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of
voters who are immigrants or permanent residents in other countries
by their mere act of executing an affidavit expressing their intention to
return to the Philippines, violate the residency requirement in Section
1 of Article V of the Constitution?
B. Does Section 18.5 of the same law empowering the COMELEC to
proclaim the winning candidates for national offices and party list
representatives including the President and the Vice-President violate
the constitutional mandate under Section 4, Article VII of the
Constitution that the winning candidates for President and the Vice-
President shall be proclaimed as winners by Congress?
 C. May Congress, through the Joint Congressional Oversight
Committee created in Section 25 of Rep. Act No. 9189, exercise the
power to review, revise, amend, and approve the Implementing Rules
and Regulations that the Commission on Elections shall promulgate
without violating the independence of the COMELEC under Section 1,
Article IX-A of the Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of
the 1987 Constitution of the Republic of the Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. The following shall be disqualified from
voting under this Act:
.........
d) An immigrant or a permanent resident who is recognized as such
in the host country, unless he/she executes, upon registration, an
affidavit prepared for the purpose by the Commission declaring that
he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her
registration under this Act. Such affidavit shall also state that he/she
has not applied for citizenship in another country. Failure to return
shall be cause for the removal of the name of the immigrant or
permanent resident from the National Registry of Absentee Voters and
his/her permanent disqualification to vote in absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates
Section 1, Article V of the 1987 Constitution which requires that the voter must
be a resident in the Philippines for at least one year and in the place where he
proposes to vote for at least six months immediately preceding an election.
Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals12 to support
his claim. In that case, the Court held that a "green card" holder immigrant to
the United States is deemed to have abandoned his domicile and residence in
the Philippines.
Petitioner further argues that Section 1, Article V of the Constitution does not
allow provisional registration or a promise by a voter to perform a condition to
be qualified to vote in a political exercise;13 that the legislature should not be
allowed to circumvent the requirement of the Constitution on the right of
suffrage by providing a condition thereon which in effect amends or alters the
aforesaid residence requirement to qualify a Filipino abroad to vote. 14 He
claims that the right of suffrage should not be granted to anyone who, on the
date of the election, does not possess the qualifications provided for by Section
1, Article V of the Constitution.
Respondent COMELEC refrained from commenting on this issue.15
In compliance with the Resolution of the Court, the Solicitor General filed his
comment for all public respondents. He contraposes that the constitutional
challenge to Section 5(d) must fail because of the absence of clear and
unmistakable showing that said provision of law is repugnant to the
Constitution. He stresses: All laws are presumed to be constitutional; by the
doctrine of separation of powers, a department of government owes a
becoming respect for the acts of the other two departments; all laws are
presumed to have adhered to constitutional limitations; the legislature intended
to enact a valid, sensible, and just law.
In addition, the Solicitor General points out that Section 1, Article V of the
Constitution is a verbatim reproduction of those provided for in the 1935 and
the 1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House
of Representatives16 wherein the Court held that the term "residence" has
been understood to be synonymous with "domicile" under both Constitutions.
He further argues that a person can have only one "domicile" but he can have
two residences, one permanent (the domicile) and the other temporary; 17 and
that the definition and meaning given to the term residence likewise applies to
absentee voters. Invoking Romualdez-Marcos vs. COMELEC18 which
reiterates the Courts ruling in Faypon vs. Quirino,19 the Solicitor General
maintains that Filipinos who are immigrants or permanent residents abroad
may have in fact never abandoned their Philippine domicile.20
Taking issue with the petitioners contention that "green card" holders are
considered to have abandoned their Philippine domicile, the Solicitor General
suggests that the Court may have to discard its ruling in Caasi vs. Court of
Appeals21 in so far as it relates to immigrants and permanent residents in
foreign countries who have executed and submitted their affidavits
conformably with Section 5(d) of R.A. No. 9189. He maintains that through the
execution of the requisite affidavits, the Congress of the Philippines with the
concurrence of the President of the Republic had in fact given these
immigrants and permanent residents the opportunity, pursuant to Section 2,
Article V of the Constitution, to manifest that they had in fact never abandoned
their Philippine domicile; that indubitably, they would have formally and
categorically expressed the requisite intentions, i.e., "animus manendi" and
"animus revertendi;" that Filipino immigrants and permanent residents abroad
possess the unquestionable right to exercise the right of suffrage under
Section 1, Article V of the Constitution upon approval of their registration,
conformably with R.A. No. 9189.22
The seed of the present controversy is the interpretation that is given to the
phrase, "qualified citizens of the Philippines abroad" as it appears in R.A. No.
9189, to wit:
SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a
system of honest and orderly overseas absentee voting that upholds the
secrecy and sanctity of the ballot. Towards this end, the State ensures equal
opportunity to all qualified citizens of the Philippines abroad in the exercise
of this fundamental right.
SEC. 3. Definition of Terms. For purposes of this Act:
a) "Absentee Voting" refers to the process by which qualified
citizens of the Philippines abroad, exercise their right to
vote;
. . . (Emphasis supplied)
f) "Overseas Absentee Voter" refers to a citizen of the
Philippines who is qualified to register and vote under this
Act, not otherwise disqualified by law, who is abroad on the
day of elections. (Emphasis supplied)
SEC. 4. Coverage. All citizens of the Philippines abroad, who are
not otherwise disqualified by law, at least eighteen (18) years of
age on the day of elections, may vote for president, vice-president,
senators and party-list representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the Philippines
not otherwise disqualified by law, who are at least eighteen years of
age, and who shall have resided in the Philippines for at least one year
and in the place wherein they propose to vote for at least six months
immediately preceding the election. No literacy, property, or other
substantive requirement shall be imposed on the exercise of suffrage.
SEC. 2. The Congress shall provide a system for securing the
secrecy and sanctity of the ballot as well as a system for absentee
voting by qualified Filipinos abroad.
. . . . . . . . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically provides that suffrage may
be exercised by (1) all citizens of the Philippines, (2) not otherwise disqualified
by law, (3) at least eighteen years of age, (4) who are residents in the
Philippines for at least one year and in the place where they propose to vote
for at least six months immediately preceding the election. Under Section 5(d)
of R.A. No. 9189, one of those disqualified from voting is an immigrant or
permanent resident who is recognized as such in the host country unless
he/she executes an affidavit declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three years from
approval of his/her registration under said Act.
Petitioner questions the rightness of the mere act of execution of an affidavit
to qualify the Filipinos abroad who are immigrants or permanent residents, to
vote. He focuses solely on Section 1, Article V of the Constitution in ascribing
constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the
provisions of Section 2 empowering Congress to provide a system for
absentee voting by qualified Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give
the impression that it contravenes Section 1, Article V of the Constitution.
Filipino immigrants and permanent residents overseas are perceived as
having left and abandoned the Philippines to live permanently in their host
countries and therefore, a provision in the law enfranchising those who do not
possess the residency requirement of the Constitution by the mere act of
executing an affidavit expressing their intent to return to the Philippines within
a given period, risks a declaration of unconstitutionality. However, the risk is
more apparent than real.
The Constitution is the fundamental and paramount law of the nation to which
all other laws must conform and in accordance with which all private rights
must be determined and all public authority administered.23 Laws that do not
conform to the Constitution shall be stricken down for being unconstitutional.
Generally, however, all laws are presumed to be constitutional. In Peralta vs.
COMELEC, the Court said:
. . . An act of the legislature, approved by the executive, is presumed
to be within constitutional limitations. The responsibility of upholding
the Constitution rests not on the courts alone but on the legislature as
well. The question of the validity of every statute is first determined by
the legislative department of the government itself.24
Thus, presumption of constitutionality of a law must be overcome convincingly:
 . . . To declare a law unconstitutional, the repugnancy of that law to
the Constitution must be clear and unequivocal, for even if a law is
aimed at the attainment of some public good, no infringement of
constitutional rights is allowed. To strike down a law there must be a
clear showing that what the fundamental law condemns or prohibits,
the statute allows it to be done.25
As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos,
it behooves the Court to take a holistic view of the pertinent provisions of both
the Constitution and R.A. No. 9189. It is a basic rule in constitutional
construction that the Constitution should be construed as a whole.
In Chiongbian vs. De Leon,26 the Court held that a constitutional 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.
Constitutional provisions are mandatory in character unless, either by express
statement or by necessary implication, a different intention is manifest. 27 The
intent of the Constitution may be drawn primarily from the language of the
document itself. Should it be ambiguous, the Court may consider the intent of
its framers through their debates in the constitutional convention.28
R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph
of Section 2, Article V of the Constitution that Congress shall provide a system
for voting by qualified Filipinos abroad. It must be stressed that Section 2 does
not provide for the parameters of the exercise of legislative authority in
enacting said law. Hence, in the absence of restrictions, Congress is presumed
to have duly exercised its function as defined in Article VI (The Legislative
Department) of the Constitution.
To put matters in their right perspective, it is necessary to dwell first on the
significance of absentee voting. The concept of absentee voting is relatively
new. It is viewed thus:
The method of absentee voting has been said to be completely
separable and distinct from the regular system of voting, and to be a
new and different manner of voting from that previously known, and
an exception to the customary and usual manner of voting. The right
of absentee and disabled voters to cast their ballots at an election
is purely statutory; absentee voting was unknown to, and not
recognized at, the common law.
Absentee voting is an outgrowth of modern social and economic
conditions devised to accommodate those engaged in military or civil
life whose duties make it impracticable for them to attend their polling
places on the day of election, and the privilege of absentee voting
may flow from constitutional provisions or be conferred by
statutes, existing in some jurisdictions, which provide in varying terms
for the casting and reception of ballots by soldiers and sailors or other
qualified voters absent on election day from the district or precinct of
their residence.
Such statutes are regarded as conferring a privilege and not a right,
or an absolute right. When the legislature chooses to grant the
right by statute, it must operate with equality among all the class
to which it is granted; but statutes of this nature may be limited
in their application to particular types of elections. The statutes
should be construed in the light of any constitutional provisions
affecting registration and elections, and with due regard to their
texts prior to amendment and to predecessor statutes and the
decisions thereunder; they should also be construed in the light of
the circumstances under which they were enacted; and so as to
carry out the objects thereof, if this can be done without doing violence
to their provisions and mandates. Further, in passing on statutes
regulating absentee voting, the court should look to the whole
and every part of the election laws, the intent of the entire plan,
and reasons and spirit of their adoption, and try to give effect to
every portion thereof.29 (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person cannot be
at the same time, both a resident and an absentee.30 However, under our
election laws and the countless pronouncements of the Court pertaining to
elections, an absentee remains attached to his residence in the Philippines
as residence is considered synonymous with domicile.
In Romualdez-Marcos,31 the Court enunciated:
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights
and the fulfillment of civil obligations, the domicile of natural persons
is their place of habitual residence." In Ong vs. Republic, this court
took the concept of domicile to mean an individuals "permanent
home," "a place to which, whenever absent for business or for
pleasure, one intends to return, and depends on facts and
circumstances in the sense that they disclose intent." Based on the
foregoing, domicile includes the twin elements of "the fact of residing
or physical presence in a fixed place" and animus manendi, or the
intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship
of an individual to a certain place. It is the physical presence of a
person in a given area, community or country. The essential distinction
between residence and domicile in law is that residence involves the
 intent to leave when the purpose for which the resident has taken up
his abode ends. One may seek a place for purposes such as pleasure,
business, or health. If a persons intent be to remain, it becomes his
domicile; if his intent is to leave as soon as his purpose is established
it is residence. It is thus, quite perfectly normal for an individual to have
different residences in various places. However, a person can only
have a single domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of choice.
In Uytengsu vs. Republic, we laid this distinction quite clearly:
"There is a difference between domicile and residence.
Residence is used to indicate a place of abode, whether
permanent or temporary; domicile denotes a fixed
permanent residence to which, when absent, one has the
intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile,
but domicile is residence coupled with the intention to remain
for an unlimited time. A man can have but one domicile for the
same purpose at any time, but he may have numerous places
of residence. His place of residence is generally his place of
domicile, but it is not by any means necessarily so since no
length of residence without intention of remaining will
constitute domicile."
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these concepts
have evolved in our election law, what has clearly and
unequivocally emerged is the fact that residence for election
purposes is used synonymously with domicile.32(Emphasis
supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to his residence
in this country, the framers of the Constitution considered the circumstances
that impelled them to require Congress to establish a system for overseas
absentee voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right
of suffrage, which here has a residential restriction, is not denied to
citizens temporarily residing or working abroad. Based on the statistics
of several government agencies, there ought to be about two million
such Filipinos at this time. Commissioner Bernas had earlier pointed
out that these provisions are really lifted from the two previous
Constitutions of 1935 and 1973, with the exception of the last
paragraph. They could not therefore have foreseen at that time the
phenomenon now described as the Filipino labor force explosion
overseas.
According to government data, there are now about 600,000 contract
workers and employees, and although the major portions of these
expatriate communities of workers are to be found in the Middle East,
they are scattered in 177 countries in the world.
In a previous hearing of the Committee on Constitutional
Commissions and Agencies, the Chairman of the Commission on
Elections, Ramon Felipe, said that there was no insuperable obstacle
to making effective the right of suffrage for Filipinos overseas. Those
who have adhered to their Filipino citizenship notwithstanding strong
temptations are exposed to embrace a more convenient foreign
citizenship. And those who on their own or under pressure of
economic necessity here, find that they have to detach themselves
from their families to work in other countries with definite tenures of
employment. Many of them are on contract employment for one, two,
or three years. They have no intention of changing their residence on
a permanent basis, but are technically disqualified from exercising the
right of suffrage in their countries of destination by the residential
requirement in Section 1 which says:
Suffrage shall be exercised by all citizens of the Philippines
not otherwise disqualified by law, who are eighteen years of
age or over, and who shall have resided in the Philippines for
at least one year and in the place wherein they propose to
vote for at least six months preceding the election.
I, therefore, ask the Committee whether at the proper time they might
entertain an amendment that will make this exercise of the right to vote
abroad for Filipino citizens an effective, rather than merely a nominal
right under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more
than just saying that, I would like to make a comment on the meaning
of "residence" in the Constitution because I think it is a concept that
has been discussed in various decisions of the Supreme Court,
particularly in the case of Faypon vs. Quirino, a 1954 case which dealt
precisely with the meaning of "residence" in the Election Law. Allow
me to quote:
A citizen may leave the place of his birth to look for greener
pastures, as the saying goes, to improve his lot and that, of
course, includes study in other places, practice of his
avocation, reengaging in business. When an election is to be
held, the citizen who left his birthplace to improve his lot may
decide to return to his native town, to cast his ballot, but for
 professional or business reasons, or for any other reason, he
may not absent himself from the place of his professional or
business activities.
So, they are here registered as voters as he has the
qualifications to be one, and is not willing to give up or lose
the opportunity to choose the officials who are to run the
government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile
or residence of origin has not forsaken him.
This may be the explanation why the registration of a voter in a place other
than his residence of origin has not been deemed sufficient to consider
abandonment or loss of such residence of origin.
In other words, "residence" in this provision refers to two residence
qualifications: "residence" in the Philippines and "residence" in the
place where he will vote. As far as residence in the Philippines is
concerned, the word "residence" means domicile, but as far as
residence in the place where he will actually cast his ballot is
concerned, the meaning seems to be different. He could have a
domicile somewhere else and yet he is a resident of a place for six
months and he is allowed to vote there. So that there may be serious
constitutional obstacles to absentee voting, unless the vote of the
person who is absent is a vote which will be considered as cast
in the place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who
should enjoy the right of suffrage, at least a substantial segment of
these overseas Filipino communities. The Committee, of course, is
aware that when this Article of the Constitution explicitly and
unequivocally extends the right of effective suffrage to Filipinos
abroad, this will call for a logistical exercise of global proportions. In
effect, this will require budgetary and administrative commitments on
the part of the Philippine government, mainly through the COMELEC
and the Ministry of Foreign Affairs, and perhaps, a more extensive
elaboration of this mechanism that will be put in place to make
effective the right to vote. Therefore, seeking shelter in some wise
jurisprudence of the past may not be sufficient to meet the
demands of the right of suffrage for Filipinos abroad that I have
mentioned. But I want to thank the Committee for saying that an
amendment to this effect may be entertained at the proper time. . . . .
. . . . . 33 (Emphasis supplied)
Thus, the Constitutional Commission recognized the fact that while millions of
Filipinos reside abroad principally for economic reasons and hence they
contribute in no small measure to the economic uplift of this country, their
voices are marginal insofar as the choice of this countrys leaders is
concerned.
The Constitutional Commission realized that under the laws then existing and
considering the novelty of the system of absentee voting in this jurisdiction,
vesting overseas Filipinos with the right to vote would spawn constitutional
problems especially because the Constitution itself provides for the residency
requirement of voters:
MR. REGALADO. Before I act on that, may I inquire from
Commissioner Monsod if the term "absentee voting" also includes
transient voting; meaning, those who are, let us say, studying in Manila
need not go back to their places of registration, for instance, in
Mindanao, to cast their votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos
abroad.
MR. REGALADO. How about those people who cannot go back to the
places where they are registered?
MR. MONSOD. Under the present Election Code, there are provisions
for allowing students and military people who are temporarily in
another place to register and vote. I believe that those situations can
be covered by the Omnibus Election Code. The reason we want
absentee voting to be in the Constitution as a mandate to the
legislature is that there could be inconsistency on the residence
rule if it is just a question of legislation by Congress. So, by
allowing it and saying that this is possible, then legislation can
take care of the rest.34 (Emphasis supplied)
Thus, Section 2, Article V of the Constitution came into being to remove any
doubt as to the inapplicability of the residency requirement in Section 1. It is
precisely to avoid any problems that could impede the implementation of its
pursuit to enfranchise the largest number of qualified Filipinos who are not in
the Philippines that the Constitutional Commission explicitly mandated
Congress to provide a system for overseas absentee voting.
The discussion of the Constitutional Commission on the effect of the residency
requirement prescribed by Section 1, Article V of the Constitution on the
proposed system of absentee voting for qualified Filipinos abroad is
enlightening:
MR. SUAREZ. May I just be recognized for a clarification. There are
certain qualifications for the exercise of the right of suffrage like having
resided in the Philippines for at least one year and in the place where
they propose to vote for at least six months preceding the elections.
What is the effect of these mandatory requirements on the matter of
the exercise of the right of suffrage by the absentee voters like
Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?
MR. MONSOD. I believe the answer was already given by
Commissioner Bernas, that the domicile requirements as well as the
qualifications and disqualifications would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the
system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS. But I think it should be further clarified with regard to
the residence requirement or the place where they vote in practice;
the understanding is that it is flexible. For instance, one might be a
resident of Naga or domiciled therein, but he satisfies the requirement
of residence in Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the
Committee to change the word "Filipinos" to QUALIFIED FILIPINO
VOTERS. Instead of "VOTING BY FILIPINOS ABROAD," it should be
QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED
VOTERS LIVING ABROAD, would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase
"QUALIFIED FILIPINOS ABROAD" because "QUALIFIED" would
assume that he has the qualifications and none of the disqualifications
to vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.
MR. REGALADO. When Commissioner Bengzon asked me to read
my proposed amendment, I specifically stated that the National
Assembly shall prescribe a system which will enable qualified citizens,
temporarily absent from the Philippines, to vote. According to
Commissioner Monsod, the use of the phrase "absentee voting"
already took that into account as its meaning. That is referring to
qualified Filipino citizens temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say that with
respect to registration we will leave it up to the legislative
assembly, for example, to require where the registration is. If it
is, say, members of the diplomatic corps who may be
continuously abroad for a long time, perhaps, there can be a
system of registration in the embassies. However, we do not like
to preempt the legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsods
amendment is only to provide a system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he
wants new qualifications for these absentee voters.
MR. MONSOD. That is right. They must have the qualifications and
none of the disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President.35 (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is to entrust to
Congress the responsibility of devising a system of absentee voting. The
qualifications of voters as stated in Section 1 shall remain except for the
residency requirement. This is in fact the reason why the Constitutional
Commission opted for the termqualified Filipinos abroad with respect to the
system of absentee voting that Congress should draw up. As stressed by
Commissioner Monsod, by the use of the adjective qualified with respect to
Filipinos abroad, the assumption is that they have the "qualifications and none
of the disqualifications to vote." In fine-tuning the provision on absentee voting,
the Constitutional Commission discussed how the system should work:
MR. SUAREZ. For clarification purposes, we just want to state for the
record that in the case of qualified Filipino citizens residing abroad and
exercising their right of suffrage, they can cast their votes for the
candidates in the place where they were registered to vote in the
Philippines. So as to avoid any complications, for example, if they are
registered in Angeles City, they could not vote for a mayor in Naga
City.
In other words, if that qualified voter is registered in Angeles City, then
he can vote only for the local and national candidates in Angeles City.
I just want to make that clear for the record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner Regalado say?
MR. REGALADO. I just want to make a note on the statement of
Commissioner Suarez that this envisions Filipinos residing abroad.
The understanding in the amendment is that the Filipino is temporarily
abroad.He may not be actually residing abroad; he may just be there
on a business trip. It just so happens that the day before the elections
he has to fly to the United States, so he could not cast his vote. He is
temporarily abroad, but not residing there. He stays in a hotel for two
days and comes back. This is not limited only to Filipinos
temporarily residing abroad. But as long as he is temporarily
abroad on the date of the elections, then he can fall within the
prescription of Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further clarification.
Precisely, we need this clarification on record.
MR. MONSOD. Madam President, to clarify what we mean by
"temporarily abroad," it need not be on very short trips. One can
be abroad on a treaty traders visa. Therefore, when we talk about
registration, it is possible that his residence is in Angeles and he would
be able to vote for the candidates in Angeles, butCongress or the
Assembly may provide the procedure for registration, like listing
ones name, in a registry list in the embassy abroad. That is still
possible under the system.
FR. BERNAS. Madam President, just one clarification if
Commissioner Monsod agrees with this.
Suppose we have a situation of a child of a diplomatic officer who
reaches the voting age while living abroad and he has never registered
here. Where will he register? Will he be a registered voter of a certain
locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child
to comply with the registration requirements in an embassy in the
United States and his name is then entered in the official registration
book in Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter of Los
Angeles, but a registered voter of a locality here.
MR. MONSOD. That is right. He does not have to come home to the
Philippines to comply with the registration procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader wishes to inquire
if there are more clarifications needed from the body.
Also, the Floor Leader is happy to announce that there are no more
registered Commissioners to propose amendments. So I move that
we close the period of amendments.36 (Emphasis supplied)
It is clear from these discussions of the members of the Constitutional
Commission that they intended to enfranchise as much as possible all Filipino
citizens abroad who have not abandoned their domicile of origin. The
Commission even intended to extend to young Filipinos who reach voting age
abroad whose parents domicile of origin is in the Philippines, and consider
them qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided for Section 2
immediately after the residency requirement of Section 1. By the doctrine of
necessary implication in statutory construction, which may be applied in
construing constitutional provisions,37 the strategic location of Section 2
indicates that the Constitutional Commission provided for an exception to the
actual residency requirement of Section 1 with respect to qualified Filipinos
abroad. The same Commission has in effect declared that qualified Filipinos
who are not in the Philippines may be allowed to vote even though they do not
satisfy the residency requirement in Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency
requirement found in Section 1 of the same Article was in fact the subject of
debate when Senate Bill No. 2104, which became R.A. No. 9189, was
deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in
relation to the constitutional provisions. I think the sponsor and I would
agree that the Constitution is supreme in any statute that we may
enact.
Let me read Section 1, Article V, of the Constitution entitled,
"Suffrage." It says:
Section 1. Suffrage may be exercised by all citizens of the
Philippines not otherwise disqualified by law, who are at least
eighteen years of age, and who shall have resided in the
Philippines for at least one year and in the place wherein they
propose to vote for at least six months immediately preceding
the election.
Now, Mr. President, the Constitution says, "who shall have resided in
the Philippines." They are permanent immigrants. They have changed
residence so they are barred under the Constitution. This is why I
asked whether this committee amendment which in fact does not alter
the original text of the bill will have any effect on this?
Senator Angara. Good question, Mr. President. And this has been
asked in various fora. This is in compliance with the Constitution. One,
the interpretation here of "residence" is synonymous with "domicile."
As the gentleman and I know, Mr. President, "domicile" is the intent to
return to ones home. And the fact that a Filipino may have been
physically absent from the Philippines and may be physically a
resident of the United States, for example, but has a clear intent
to return to the Philippines, will make him qualified as a resident
of the Philippines under this law.
This is consistent, Mr. President, with the constitutional mandate that
we that Congress must provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as
demanding physical presence, then there is no way we can
provide for offshore voting to our offshore kababayan, Mr.
President.
Senator Arroyo. Mr. President, when the Constitution says, in
Section 2 of Article V, it reads: "The Congress shall provide a system
for securing the secrecy and sanctity of the ballot as well as a system
for absentee voting by qualified Filipinos abroad."
The key to this whole exercise, Mr. President, is "qualified." In
other words, anything that we may do or say in granting our
compatriots abroad must be anchored on the proposition that
they are qualified. Absent the qualification, they cannot vote. And
"residents" (sic) is a qualification.
I will lose votes here from permanent residents so-called "green-card
holders", but the Constitution is the Constitution. We cannot
compromise on this. The Senate cannot be a party to something that
would affect or impair the Constitution.
Look at what the Constitution says "In the place wherein they
propose to vote for at least six months immediately preceding the
election."
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator Cayetano lives.
We are separated only by a creek. But one who votes in Makati cannot
vote in Pateros unless he resides in Pateros for six months. That is
how restrictive our Constitution is. I am not talking even about the
Election Code. I am talking about the Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes,
he may do so. But he must do so, make the transfer six months before
the election, otherwise, he is not qualified to vote.
That is why I am raising this point because I think we have a
fundamental difference here.
Senator Angara. It is a good point to raise, Mr. President. But it is a
point already well-debated even in the constitutional commission of
1986. And the reason Section 2 of Article V was placed
immediately after the six-month/one-year residency requirement
is to demonstrate unmistakably that Section 2 which authorizes
absentee voting is an exception to the six-month/one-year
residency requirement. That is the first principle, Mr. President, that
one must remember.
 The second reason, Mr. President, is that under our jurisprudence
and I think this is so well-entrenched that one need not argue about it
"residency" has been interpreted as synonymous with "domicile."
But the third more practical reason, Mr. President, is, if we follow
the interpretation of the gentleman, then it is legally and
constitutionally impossible to give a franchise to vote to
overseas Filipinos who do not physically live in the country,
which is quite ridiculous because that is exactly the whole point
of this exercise to enfranchise them and empower them to
vote.38(Emphasis supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the
absentee voting process, to wit:
SEC. 4. Coverage. All citizens of the Philippines abroad, who are
not otherwise disqualified by law, at least eighteen (18) years of age
on the day of elections, may vote for president, vice-president,
senators and party-list representatives.
which does not require physical residency in the Philippines; and Section 5 of
the assailed law which enumerates those who are disqualified, to wit:
SEC. 5. Disqualifications. The following shall be disqualified from
voting under this Act:
a) Those who have lost their Filipino citizenship in accordance with
Philippine laws;
b) Those who have expressly renounced their Philippine citizenship
and who have pledged allegiance to a foreign country;
c) Those who have committed and are convicted in a final judgment
by a court or tribunal of an offense punishable by imprisonment of not
less than one (1) year, including those who have committed and been
found guilty of Disloyalty as defined under Article 137 of the Revised
Penal Code, such disability not having been removed by plenary
pardon or amnesty: Provided, however, That any person disqualified
to vote under this subsection shall automatically acquire the right to
vote upon expiration of five (5) years after service of
sentence; Provided, further, That the Commission may take
cognizance of final judgments issued by foreign courts or tribunals
only on the basis of reciprocity and subject to the formalities and
processes prescribed by the Rules of Court on execution of
judgments;
d) An immigrant or a permanent resident who is recognized as such
in the host country, unless he/she executes, upon registration, an
affidavit prepared for the purpose by the Commission declaring that
he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her
registration under this Act. Such affidavit shall also state that he/she
has not applied for citizenship in another country. Failure to return
shall be cause for the removal of the name of the immigrant or
permanent resident from the National Registry of Absentee Voters and
his/her permanent disqualification to vote in absentia.
e) Any citizen of the Philippines abroad previously declared insane or
incompetent by competent authority in the Philippines or abroad, as
verified by the Philippine embassies, consulates or foreign service
establishments concerned, unless such competent authority
subsequently certifies that such person is no longer insane or
incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically
disqualifies an immigrant or permanent resident who is "recognized as such in
the host country" because immigration or permanent residence in another
country implies renunciation of ones residence in his country of origin.
However, same Section allows an immigrant and permanent resident abroad
to register as voter for as long as he/she executes an affidavit to show that
he/she has not abandoned his domicile in pursuance of the constitutional
intent expressed in Sections 1 and 2 of Article V that "all citizens of the
Philippines not otherwise disqualified by law" must be entitled to exercise the
right of suffrage and, that Congress must establish a system for absentee
voting; for otherwise, if actual, physical residence in the Philippines is required,
there is no sense for the framers of the Constitution to mandate Congress to
establish a system for absentee voting.
Contrary to the claim of petitioner, the execution of the affidavit itself is not the
enabling or enfranchising act. The affidavit required in Section 5(d) is not only
proof of the intention of the immigrant or permanent resident to go back and
resume residency in the Philippines, but more significantly, it serves as an
explicit expression that he had not in fact abandoned his domicile of origin.
Thus, it is not correct to say that the execution of the affidavit under Section
5(d) violates the Constitution that proscribes "provisional registration or a
promise by a voter to perform a condition to be qualified to vote in a political
exercise."
To repeat, the affidavit is required of immigrants and permanent residents
abroad because by their status in their host countries, they are presumed to
have relinquished their intent to return to this country; thus, without the
affidavit, the presumption of abandonment of Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses another
reason why the Senate required the execution of said affidavit. It wanted the
affiant to exercise the option to return or to express his intention to return to
his domicile of origin and not to preempt that choice by legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: "For Filipino immigrants and those who have acquired
permanent resident status abroad," a requirement for the registration
is the submission of "a Sworn Declaration of Intent to Return duly
sworn before any Philippine embassy or consulate official authorized
to administer oath"
Mr. President, may we know the rationale of this provision? Is the
purpose of this Sworn Declaration to include only those who have the
intention of returning to be qualified to exercise the right of suffrage?
What if the Filipino immigrant has no purpose of returning? Is he
automatically disbarred from exercising this right to suffrage?
Senator Angara. The rationale for this, Mr. President, is that we
want to be expansive and all-inclusive in this law. That as long as
he is a Filipino, no matter whether he is a green-card holder in
the U.S. or not, he will be authorized to vote. But if he is already
a green-card holder, that means he has acquired permanent
residency in the United States, then he must indicate an intention
to return. This is what makes for the definition of "domicile." And
to acquire the vote, we thought that we would require the immigrants
and the green-card holders . . . Mr. President, the three administration
senators are leaving, maybe we may ask for a vote [Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the business at hand.
The rationale for the requirement that an immigrant or a green-card
holder should file an affidavit that he will go back to the Philippines is
that, if he is already an immigrant or a green-card holder, that means
he may not return to the country any more and that contradicts the
definition of "domicile" under the law.
But what we are trying to do here, Mr. President, is really provide
the choice to the voter. The voter, after consulting his lawyer or after
deliberation within the family, may decide "No, I think we are risking
our permanent status in the United States if we file an affidavit that we
want to go back." But we want to give him the opportunity to make
that decision. We do not want to make that decision for
him. 39(Emphasis supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green card
holders are disqualified to run for any elective office finds no application to the
present case because the Caasi case did not, for obvious reasons, consider
the absentee voting rights of Filipinos who are immigrants and permanent
residents in their host countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they
may still be considered as a "qualified citizen of the Philippines abroad" upon
fulfillment of the requirements of registration under the new law for the purpose
of exercising their right of suffrage.
It must be emphasized that Section 5(d) does not only require an affidavit or a
promise to "resume actual physical permanent residence in the Philippines not
later than three years from approval of his/her registration," the Filipinos
abroad must also declare that they have not applied for citizenship in another
country. Thus, they must return to the Philippines; otherwise, their failure to
return "shall be cause for the removal" of their names "from the National
Registry of Absentee Voters and his/her permanent disqualification to vote
in absentia."
Thus, Congress crafted a process of registration by which a Filipino voter
permanently residing abroad who is at least eighteen years old, not otherwise
disqualified by law, who has not relinquished Philippine citizenship and who
has not actually abandoned his/her intentions to return to his/her domicile of
origin, the Philippines, is allowed to register and vote in the Philippine
embassy, consulate or other foreign service establishments of the place which
has jurisdiction over the country where he/she has indicated his/her address
for purposes of the elections, while providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in Absentia.
11.1. Every qualified citizen of the Philippines abroad whose
application for registration has been approved, including those
previously registered under Republic Act No. 8189, shall, in every
national election, file with the officer of the embassy, consulate or
other foreign service establishment authorized by the Commission, a
sworn written application to vote in a form prescribed by the
Commission. The authorized officer of such embassy, consulate or
other foreign service establishment shall transmit to the Commission
the said application to vote within five (5) days from receipt thereof.
 The application form shall be accomplished in triplicate and submitted
together with the photocopy of his/her overseas absentee voter
certificate of registration.
11.2. Every application to vote in absentia may be done personally at,
or by mail to, the embassy, consulate or foreign service establishment,
which has jurisdiction over the country where he/she has indicated
his/her address for purposes of the elections.
11.3. Consular and diplomatic services rendered in connection with
the overseas absentee voting processes shall be made available at
no cost to the overseas absentee voter.
Contrary to petitioners claim that Section 5(d) circumvents the Constitution,
Congress enacted the law prescribing a system of overseas absentee voting
in compliance with the constitutional mandate. Such mandate expressly
requires that Congress provide a system of absentee voting that necessarily
presupposes that the "qualified citizen of the Philippines abroad" is not
physically present in the country. The provisions of Sections 5(d) and 11 are
components of the system of overseas absentee voting established by R.A.
No. 9189. The qualified Filipino abroad who executed the affidavit is deemed
to have retained his domicile in the Philippines. He is presumed not to have
lost his domicile by his physical absence from this country. His having become
an immigrant or permanent resident of his host country does not necessarily
imply an abandonment of his intention to return to his domicile of origin, the
Philippines. Therefore, under the law, he must be given the opportunity to
express that he has not actually abandoned his domicile in the Philippines by
executing the affidavit required by Sections 5(d) and 8(c) of the law.
Petitioners speculative apprehension that the implementation of Section 5(d)
would affect the credibility of the elections is insignificant as what is important
is to ensure that all those who possess the qualifications to vote on the date of
the election are given the opportunity and permitted to freely do so. The
COMELEC and the Department of Foreign Affairs have enough resources and
talents to ensure the integrity and credibility of any election conducted
pursuant to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his undertaking
to return to the Philippines, the penalty of perpetual disenfranchisement
provided for by Section 5(d) would suffice to serve as deterrence to non-
compliance with his/her undertaking under the affidavit.
Petitioner argues that should a sizable number of "immigrants" renege on their
promise to return, the result of the elections would be affected and could even
be a ground to contest the proclamation of the winning candidates and cause
further confusion and doubt on the integrity of the results of the election.
Indeed, the probability that after an immigrant has exercised the right to vote,
he shall opt to remain in his host country beyond the third year from the
execution of the affidavit, is not farfetched. However, it is not for this Court to
determine the wisdom of a legislative exercise. As expressed in Taada vs.
Tuvera,40 the Court is not called upon to rule on the wisdom of the law or to
repeal it or modify it if we find it impractical.
Congress itself was conscious of said probability and in fact, it has addressed
the expected problem. Section 5(d) itself provides for a deterrence which is
that the Filipino who fails to return as promised stands to lose his right of
suffrage. Under Section 9, should a registered overseas absentee voter fail to
vote for two consecutive national elections, his name may be ordered removed
from the National Registry of Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what happens to
the votes cast by the qualified voters abroad who were not able to return within
three years as promised? What is the effect on the votes cast by the non-
returnees in favor of the winning candidates? The votes cast by qualified
Filipinos abroad who failed to return within three years shall not be invalidated
because they were qualified to vote on the date of the elections, but their failure
to return shall be cause for the removal of the names of the immigrants or
permanent residents from the National Registry of Absentee Voters and their
permanent disqualification to vote in absentia.
In fine, considering the underlying intent of the Constitution, the Court does
not find Section 5(d) of R.A. No. 9189 as constitutionally defective.
B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act
in contravention of Section 4, Article VII of the Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee voter may
vote for president, vice-president, senators and party-list representatives.
Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing.
.........
18. 5 The canvass of votes shall not cause the delay of the
proclamation of a winning candidate if the outcome of the election will
not be affected by the results thereof. Notwithstanding the
foregoing, the Commission is empowered to order the
proclamation of winning candidates despite the fact that the
 scheduled election has not taken place in a particular country or
countries, if the holding of elections therein has been rendered
impossible by events, factors and circumstances peculiar to such
country or countries, in which events, factors and circumstances are
beyond the control or influence of the Commission. (Emphasis
supplied)
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189
empowering the COMELEC to order the proclamation of winning candidates
insofar as it affects the canvass of votes and proclamation of winning
candidates for president and vice-president, is unconstitutional because it
violates the following provisions of paragraph 4, Section 4 of Article VII of the
Constitution:
SEC. 4 . . .
The returns of every election for President and Vice-President, duly
certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate.
Upon receipt of the certificates of canvass, the President of the Senate
shall, not later than thirty days after the day of the election, open all
the certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the
manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed
elected, but in case two or more shall have an equal and highest
number of votes, one of them shall forthwith be chosen by the vote of
a majority of all the Members of both Houses of the Congress, voting
separately.
The Congress shall promulgate its rules for the canvassing of the
certificates.
...
which gives to Congress the duty to canvass the votes and proclaim the
winning candidates for president and vice-president.
The Solicitor General asserts that this provision must be harmonized with
paragraph 4, Section 4, Article VII of the Constitution and should be taken to
mean that COMELEC can only proclaim the winning Senators and party-list
representatives but not the President and Vice-President.41
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of
R.A. No. 9189 is far too sweeping that it necessarily includes the proclamation
of the winning candidates for the presidency and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article
VII of the Constitution only insofar as said Section totally disregarded the
authority given to Congress by the Constitution to proclaim the winning
candidates for the positions of president and vice-president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the
chairman of the Special Board of Canvassers shall transmit via
facsimile, electronic mail, or any other means of transmission equally
safe and reliable the Certificates of Canvass and the Statements of
Votes to the Commission, . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution which
provides that the returns of every election for President and Vice-President
shall be certified by the board of canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power that
constitutionally belongs to it or, as aptly stated by petitioner, to encroach "on
the power of Congress to canvass the votes for president and vice-president
and the power to proclaim the winners for the said positions." The provisions
of the Constitution as the fundamental law of the land should be read as part
of The Overseas Absentee Voting Act of 2003 and hence, the canvassing of
the votes and the proclamation of the winning candidates for president and
vice-president for the entire nation must remain in the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1,
Article IX-A of the Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A
(Common Provisions) of the Constitution, to wit:
Section 1. The Constitutional Commissions, which shall
be independent, are the Civil Service Commission, the Commission
on Elections, and the Commission on Audit. (Emphasis supplied)
He submits that the creation of the Joint Congressional Oversight Committee
with the power to review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into
the independence of the COMELEC which, as a constitutional body, is not
under the control of either the executive or legislative departments of
government; that only the COMELEC itself can promulgate rules and
regulations which may be changed or revised only by the majority of its
members; and that should the rules promulgated by the COMELEC violate any
law, it is the Court that has the power to review the same via the petition of any
interested party, including the legislators.
It is only on this question that respondent COMELEC submitted its Comment.
It agrees with the petitioner that Sections 19 and 25 of R.A. No. 9189 are
unconstitutional. Like the petitioner, respondent COMELEC anchors its claim
of unconstitutionality of said Sections upon Section 1, Article IX-A of the
Constitution providing for the independence of the constitutional commissions
such as the COMELEC. It asserts that its power to formulate rules and
regulations has been upheld in Gallardo vs. Tabamo, Jr.42 where this Court
held that the power of the COMELEC to formulate rules and regulations is
implicit in its power to implement regulations under Section 2(1) of Article IX-
C43 of the Constitution. COMELEC joins the petitioner in asserting that as an
independent constitutional body, it may not be subject to interference by any
government instrumentality and that only this Court may review COMELEC
rules and only in cases of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis--vis its rule-
making power, to wit:
SEC. 17. Voting by Mail.
17.1. For the May, 2004 elections, the Commission shall authorize
voting by mail in not more than three (3) countries, subject to the
approval of the Congressional Oversight Committee. Voting by
mail may be allowed in countries that satisfy the following conditions:
a) Where the mailing system is fairly well-developed and secure to
prevent occasion for fraud;
b) Where there exists a technically established identification system
that would preclude multiple or proxy voting; and
c) Where the system of reception and custody of mailed ballots in the
embassies, consulates and other foreign service establishments
concerned are adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only
upon review and approval of the Joint Congressional Oversight
Committee . . . . . . . . . (Emphasis supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A mandating the
independence of constitutional commissions.
The Solicitor General takes exception to his prefatory statement that the
constitutional challenge must fail and agrees with the petitioner that Sections
19 and 25 are invalid and unconstitutional on the ground that there is nothing
in Article VI of the Constitution on Legislative Department that would as much
as imply that Congress has concurrent power to enforce and administer
election laws with the COMELEC; and by the principles of exclusio unius est
exclusio alterius and expressum facit cessare tacitum, the constitutionally
enumerated powers of Congress circumscribe its authority to the exclusion of
all others.
The parties are unanimous in claiming that Sections 19, 25 and portions of
Section 17.1 are unconstitutional. Thus, there is no actual issue forged on this
question raised by petitioner.
However, the Court finds it expedient to expound on the role of Congress
through the Joint Congressional Oversight Committee (JCOC) vis--vis the
independence of the COMELEC, as a constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. A Joint
Congressional Oversight Committee is hereby created, composed of
the Chairman of the Senate Committee on Constitutional
Amendments, Revision of Codes and Laws, and seven (7) other
Senators designated by the Senate President, and the Chairman of
the House Committee on Suffrage and Electoral Reforms, and seven
(7) other Members of the House of Representatives designated by the
Speaker of the House of Representatives: Provided, That, of the
seven (7) members to be designated by each House of Congress, four
(4) should come from the majority and the remaining three (3) from the
minority.
The Joint Congressional Oversight Committee shall have the
power to monitor and evaluate the implementation of this Act. It
shall review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the Commission. (Emphasis
supplied)
 SEC. 19. Authority of the Commission to Promulgate Rules. The
Commission shall issue the necessary rules and regulations to
effectively implement the provisions of this Act within sixty (60) days
from the effectivity of this Act. The Implementing Rules and
Regulations shall be submitted to the Joint Congressional
Oversight Committee created by virtue of this Act for prior
approval.
. . . . . . . . . (Emphasis supplied)
Composed of Senators and Members of the House of Representatives, the
Joint Congressional Oversight Committee (JCOC) is a purely legislative body.
There is no question that the authority of Congress to "monitor and evaluate
the implementation" of R.A. No. 9189 is geared towards possible amendments
or revision of the law itself and thus, may be performed in aid of its legislation.
However, aside from its monitoring and evaluation functions, R.A. No. 9189
gives to the JCOC the following functions: (a) to "review, revise, amend and
approve the Implementing Rules and Regulations" (IRR) promulgated by the
COMELEC [Sections 25 and 19]; and (b) subject to the approval of the JCOC
[Section 17.1], the voting by mail in not more than three countries for the May
2004 elections and in any country determined by COMELEC.
The ambit of legislative power under Article VI of the Constitution is
circumscribed by other constitutional provisions. One such provision is Section
1 of Article IX-A of the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be "independent."
Interpreting Section 1, Article X of the 1935 Constitution providing that there
shall be an independent COMELEC, the Court has held that "[w]hatever may
be the nature of the functions of the Commission on Elections, the fact is that
the framers of the Constitution wanted it to be independent from the other
departments of the Government."44 In an earlier case, the Court elucidated:
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions
that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this court also. It
should be allowed considerable latitude in devising means and
methods that will insure the accomplishment of the great objective for
which it was created free, orderly and honest elections. We may not
agree fully with its choice of means, but unless these are clearly illegal
or constitute gross abuse of discretion, this court should not interfere.
Politics is a practical matter, and political questions must be dealt with
realistically not from the standpoint of pure theory. The Commission
on Elections, because of its fact-finding facilities, its contacts with
political strategists, and its knowledge derived from actual experience
in dealing with political controversies, is in a peculiarly advantageous
position to decide complex political questions.45 (Emphasis supplied)
The Court has no general powers of supervision over COMELEC which is an
independent body "except those specifically granted by the Constitution," that
is, to review its decisions, orders and rulings.46 In the same vein, it is not correct
to hold that because of its recognized extensive legislative power to enact
election laws, Congress may intrude into the independence of the COMELEC
by exercising supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the
COMELEC to "issue the necessary rules and regulations to effectively
implement the provisions of this Act within sixty days from the effectivity of this
Act." This provision of law follows the usual procedure in drafting rules and
regulations to implement a law the legislature grants an administrative
agency the authority to craft the rules and regulations implementing the law it
has enacted, in recognition of the administrative expertise of that agency in its
particular field of operation.47Once a law is enacted and approved, the
legislative function is deemed accomplished and complete. The legislative
function may spring back to Congress relative to the same law only if that body
deems it proper to review, amend and revise the law, but certainly not to
approve, review, revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise the
IRR for The Overseas Absentee Voting Act of 2003, Congress went beyond
the scope of its constitutional authority. Congress trampled upon the
constitutional mandate of independence of the COMELEC. Under such a
situation, the Court is left with no option but to withdraw from its usual reticence
in declaring a provision of law unconstitutional.
The second sentence of the first paragraph of Section 19 stating that "[t]he
Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for prior
approval," and the second sentence of the second paragraph of Section 25
stating that "[i]t shall review, revise, amend and approve the Implementing
Rules and Regulations promulgated by the Commission," whereby Congress,
in both provisions, arrogates unto itself a function not specifically vested by the
Constitution, should be stricken out of the subject statute for constitutional
infirmity. Both provisions brazenly violate the mandate on the independence
of the COMELEC.
Similarly, the phrase, "subject to the approval of the Congressional Oversight
Committee" in the first sentence of Section 17.1 which empowers the
Commission to authorize voting by mail in not more than three countries for
the May, 2004 elections; and the phrase, "only upon review and approval of
the Joint Congressional Oversight Committee" found in the second paragraph
of the same section are unconstitutional as they require review and approval
of voting by mail in any country after the 2004 elections. Congress may not
confer upon itself the authority to approve or disapprove the countries wherein
voting by mail shall be allowed, as determined by the COMELEC pursuant to
the conditions provided for in Section 17.1 of R.A. No. 9189. 48 Otherwise,
Congress would overstep the bounds of its constitutional mandate and intrude
into the independence of the COMELEC.
During the deliberations, all the members of the Court agreed to adopt the
separate opinion of Justice Reynato S. Puno as part of the ponencia on the
unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they
relate to the creation of and the powers given to the Joint Congressional
Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The following
portions of R.A. No. 9189 are declared VOIDfor
being UNCONSTITUTIONAL:
a) The phrase in the first sentence of the first paragraph of Section
17.1, to wit: "subject to the approval of the Joint Congressional
Oversight Committee;"
The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect
only to the authority given to the COMELEC to proclaim the winning candidates
for the Senators and party-list representatives but not as to the power to
canvass the votes and proclaim the winning candidates for President and Vice-
President which is lodged with Congress under Section 4, Article VII of the
Constitution.
The constitutionality of Section 5(d) is UPHELD.
Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law
continues to be in full force and effect.
SO ORDERED.
Davide, Jr., C.J., and Corona, JJ., concur.
Quisumbing, J., on leave.
Tinga, J., no part.
Bellosillo, and Carpio, JJ., see concurring opinion.
Puno, Ynares-Santiago, and Callejo, Sr., JJ., see concurring and dissenting
opinion.
Sandoval-Gutierrez, J., see concurring and dissenting opinion. On official
leave.
Vitug, and Panganiban, JJ., see separate opinion.
Carpio-Morales, and Azcuna, JJ., see separate (concurring) opinion.

b) The portion of the last paragraph of Section 17.1, to wit: "only upon
review and approval of the Joint Congressional Oversight
Committee;"

c) The second sentence of the first paragraph of Section 19, to wit:

"The Implementing Rules and Regulations shall be submitted to
the Joint Congressional Oversight Committee created by virtue
of this Act for prior approval;" and

d) The second sentence in the second paragraph of Section 25, to wit:

"It shall review, revise, amend and approve the Implementing
Rules and Regulations promulgated by the Commission" of the
same law;

for being repugnant to Section 1, Article IX-A of the Constitution mandating the
independence of constitutional commission, such as COMELEC.
 restraining order effective February 20, 1990. One of the petitioners (in G.R.
No. 92047) likewise prayes for a writ of mandamus to compel the respondents
to fully disclose to the public the basis of their decision to push through with
the sale of the Roppongi property inspire of strong public opposition and to
explain the proceedings which effectively prevent the participation of Filipino
citizens and entities in the bidding process.

The oral arguments in G.R. No. 92013, Laurel v. Garcia, et al. were heard by
the Court on March 13, 1990. After G.R. No. 92047, Ojeda v. Secretary
Macaraig, et al. was filed, the respondents were required to file a comment by
the Court's resolution dated February 22, 1990. The two petitions were
consolidated on March 27, 1990 when the memoranda of the parties in
the Laurel case were deliberated upon.

The Court could not act on these cases immediately because the respondents
filed a motion for an extension of thirty (30) days to file comment in G.R. No.
92047, followed by a second motion for an extension of another thirty (30) days
which we granted on May 8, 1990, a third motion for extension of time granted
on May 24, 1990 and a fourth motion for extension of time which we granted
G.R. No. 92013 July 25, 1990
on June 5, 1990 but calling the attention of the respondents to the length of
time the petitions have been pending. After the comment was filed, the
SALVADOR H. LAUREL, petitioner, petitioner in G.R. No. 92047 asked for thirty (30) days to file a reply. We noted
vs. his motion and resolved to decide the two (2) cases.
RAMON GARCIA, as head of the Asset Privatization Trust, RAUL
MANGLAPUS, as Secretary of Foreign Affairs, and CATALINO
I
MACARAIG, as Executive Secretary, respondents.

The subject property in this case is one of the four (4) properties in Japan
G.R. No. 92047 July 25, 1990
acquired by the Philippine government under the Reparations Agreement
entered into with Japan on May 9, 1956, the other lots being:
DIONISIO S. OJEDA, petitioner,
vs.
(1) The Nampeidai Property at 11-24 Nampeidai-machi, Shibuya-ku, Tokyo
EXECUTIVE SECRETARY MACARAIG, JR., ASSETS PRIVATIZATION
which has an area of approximately 2,489.96 square meters, and is at present
TRUST CHAIRMAN RAMON T. GARCIA, AMBASSADOR RAMON DEL
the site of the Philippine Embassy Chancery;
ROSARIO, et al., as members of the PRINCIPAL AND BIDDING
COMMITTEES ON THE UTILIZATION/DISPOSITION PETITION OF
PHILIPPINE GOVERNMENT PROPERTIES IN JAPAN, respondents. (2) The Kobe Commercial Property at 63 Naniwa-cho, Kobe, with an area of
around 764.72 square meters and categorized as a commercial lot now being
used as a warehouse and parking lot for the consulate staff; and
Arturo M. Tolentino for petitioner in 92013.
(3) The Kobe Residential Property at 1-980-2 Obanoyama-cho, Shinohara,
GUTIERREZ, JR., J.:
Nada-ku, Kobe, a residential lot which is now vacant.
These are two petitions for prohibition seeking to enjoin respondents, their
The properties and the capital goods and services procured from the Japanese
representatives and agents from proceeding with the bidding for the sale of
government for national development projects are part of the indemnification
the 3,179 square meters of land at 306 Roppongi, 5-Chome Minato-ku Tokyo,
to the Filipino people for their losses in life and property and their suffering
Japan scheduled on February 21, 1990. We granted the prayer for a temporary
during World War II.
The Reparations Agreement provides that reparations valued at $550 million
would be payable in twenty (20) years in accordance with annual schedules of
procurements to be fixed by the Philippine and Japanese governments (Article
2, Reparations Agreement). Rep. Act No. 1789, the Reparations Law,
prescribes the national policy on procurement and utilization of reparations
and development loans. The procurements are divided into those for use by
the government sector and those for private parties in projects as the then
National Economic Council shall determine. Those intended for the private
sector shall be made available by sale to Filipino citizens or to one hundred
(100%) percent Filipino-owned entities in national development projects.
The Roppongi property was acquired from the Japanese government under
the Second Year Schedule and listed under the heading "Government Sector",
through Reparations Contract No. 300 dated June 27, 1958. The Roppongi
property consists of the land and building "for the Chancery of the Philippine
Embassy" (Annex M-D to Memorandum for Petitioner, p. 503). As intended, it
became the site of the Philippine Embassy until the latter was transferred to
Nampeidai on July 22, 1976 when the Roppongi building needed major
repairs. Due to the failure of our government to provide necessary funds, the
Roppongi property has remained undeveloped since that time.
A proposal was presented to President Corazon C. Aquino by former
Philippine Ambassador to Japan, Carlos J. Valdez, to make the property the
subject of a lease agreement with a Japanese firm - Kajima Corporation
which shall construct two (2) buildings in Roppongi and one (1) building in
Nampeidai and renovate the present Philippine Chancery in Nampeidai. The
consideration of the construction would be the lease to the foreign corporation
of one (1) of the buildings to be constructed in Roppongi and the two (2)
buildings in Nampeidai. The other building in Roppongi shall then be used as
the Philippine Embassy Chancery. At the end of the lease period, all the three
leased buildings shall be occupied and used by the Philippine government. No
change of ownership or title shall occur. (See Annex "B" to Reply to Comment)
The Philippine government retains the title all throughout the lease period and
thereafter. However, the government has not acted favorably on this proposal
which is pending approval and ratification between the parties. Instead, on
August 11, 1986, President Aquino created a committee to study the
disposition/utilization of Philippine government properties in Tokyo and Kobe,
Japan through Administrative Order No. 3, followed by Administrative Orders
Numbered 3-A, B, C and D.
On July 25, 1987, the President issued Executive Order No. 296 entitling non-
Filipino citizens or entities to avail of separations' capital goods and services
in the event of sale, lease or disposition. The four properties in Japan including
the Roppongi were specifically mentioned in the first "Whereas" clause.
Amidst opposition by various sectors, the Executive branch of the government
has been pushing, with great vigor, its decision to sell the reparations
properties starting with the Roppongi lot. The property has twice been set for
bidding at a minimum floor price of $225 million. The first bidding was a failure
since only one bidder qualified. The second one, after postponements, has not
yet materialized. The last scheduled bidding on February 21, 1990 was
restrained by his Court. Later, the rules on bidding were changed such that the
$225 million floor price became merely a suggested floor price.
The Court finds that each of the herein petitions raises distinct issues. The
petitioner in G.R. No. 92013 objects to the alienation of the Roppongi property
to anyone while the petitioner in G.R. No. 92047 adds as a principal objection
the alleged unjustified bias of the Philippine government in favor of selling the
property to non-Filipino citizens and entities. These petitions have been
consolidated and are resolved at the same time for the objective is the same -
to stop the sale of the Roppongi property.
The petitioner in G.R. No. 92013 raises the following issues:
(1) Can the Roppongi property and others of its kind be alienated by the
Philippine Government?; and
(2) Does the Chief Executive, her officers and agents, have the authority and
jurisdiction, to sell the Roppongi property?
Petitioner Dionisio Ojeda in G.R. No. 92047, apart from questioning the
authority of the government to alienate the Roppongi property assails the
constitutionality of Executive Order No. 296 in making the property available
for sale to non-Filipino citizens and entities. He also questions the bidding
procedures of the Committee on the Utilization or Disposition of Philippine
Government Properties in Japan for being discriminatory against Filipino
citizens and Filipino-owned entities by denying them the right to be informed
about the bidding requirements.
II
In G.R. No. 92013, petitioner Laurel asserts that the Roppongi property and
the related lots were acquired as part of the reparations from the Japanese
government for diplomatic and consular use by the Philippine government.
Vice-President Laurel states that the Roppongi property is classified as one of
public dominion, and not of private ownership under Article 420 of the Civil
Code (See infra).
The petitioner submits that the Roppongi property comes under "property
intended for public service" in paragraph 2 of the above provision. He states
that being one of public dominion, no ownership by any one can attach to it,
not even by the State. The Roppongi and related properties were acquired for
"sites for chancery, diplomatic, and consular quarters, buildings and other
improvements" (Second Year Reparations Schedule). The petitioner states
that they continue to be intended for a necessary service. They are held by the
State in anticipation of an opportune use. (Citing 3 Manresa 65-66). Hence, it
cannot be appropriated, is outside the commerce of man, or to put it in more
simple terms, it cannot be alienated nor be the subject matter of contracts
(Citing Municipality of Cavite v. Rojas, 30 Phil. 20 [1915]). Noting the non-use
of the Roppongi property at the moment, the petitioner avers that the same
remains property of public dominion so long as the government has not used
it for other purposes nor adopted any measure constituting a removal of its
original purpose or use.
The respondents, for their part, refute the petitioner's contention by saying that
the subject property is not governed by our Civil Code but by the laws of Japan
where the property is located. They rely upon the rule of lex situs which is used
in determining the applicable law regarding the acquisition, transfer and
devolution of the title to a property. They also invoke Opinion No. 21, Series of
1988, dated January 27, 1988 of the Secretary of Justice which used the lex
situs in explaining the inapplicability of Philippine law regarding a property
situated in Japan.
The respondents add that even assuming for the sake of argument that the
Civil Code is applicable, the Roppongi property has ceased to become
property of public dominion. It has become patrimonial property because it has
not been used for public service or for diplomatic purposes for over thirteen
(13) years now (Citing Article 422, Civil Code) and because the intention by
the Executive Department and the Congress to convert it to private use has
been manifested by overt acts, such as, among others: (1) the transfer of the
Philippine Embassy to Nampeidai (2) the issuance of administrative orders for
the possibility of alienating the four government properties in Japan; (3) the
issuance of Executive Order No. 296; (4) the enactment by the Congress of
Rep. Act No. 6657 [the Comprehensive Agrarian Reform Law] on June 10,
1988 which contains a provision stating that funds may be taken from the sale
of Philippine properties in foreign countries; (5) the holding of the public bidding
of the Roppongi property but which failed; (6) the deferment by the Senate in
Resolution No. 55 of the bidding to a future date; thus an acknowledgment by
the Senate of the government's intention to remove the Roppongi property
from the public service purpose; and (7) the resolution of this Court dismissing
the petition in Ojeda v. Bidding Committee, et al., G.R. No. 87478 which sought
to enjoin the second bidding of the Roppongi property scheduled on March 30,
1989.
III
In G.R. No. 94047, petitioner Ojeda once more asks this Court to rule on the
constitutionality of Executive Order No. 296. He had earlier filed a petition in
G.R. No. 87478 which the Court dismissed on August 1, 1989. He now avers
that the executive order contravenes the constitutional mandate to conserve
and develop the national patrimony stated in the Preamble of the 1987
Constitution. It also allegedly violates:
(1) The reservation of the ownership and acquisition of alienable lands of the
public domain to Filipino citizens. (Sections 2 and 3, Article XII, Constitution;
Sections 22 and 23 of Commonwealth Act 141).itc-asl
(2) The preference for Filipino citizens in the grant of rights, privileges and
concessions covering the national economy and patrimony (Section 10, Article
VI, Constitution);
(3) The protection given to Filipino enterprises against unfair competition and
trade practices;
(4) The guarantee of the right of the people to information on all matters of
public concern (Section 7, Article III, Constitution);
(5) The prohibition against the sale to non-Filipino citizens or entities not wholly
owned by Filipino citizens of capital goods received by the Philippines under
the Reparations Act (Sections 2 and 12 of Rep. Act No. 1789); and
(6) The declaration of the state policy of full public disclosure of all transactions
involving public interest (Section 28, Article III, Constitution).
Petitioner Ojeda warns that the use of public funds in the execution of an
unconstitutional executive order is a misapplication of public funds He states
that since the details of the bidding for the Roppongi property were never
publicly disclosed until February 15, 1990 (or a few days before the scheduled
bidding), the bidding guidelines are available only in Tokyo, and the
accomplishment of requirements and the selection of qualified bidders should
be done in Tokyo, interested Filipino citizens or entities owned by them did not
have the chance to comply with Purchase Offer Requirements on the
Roppongi. Worse, the Roppongi shall be sold for a minimum price of $225
million from which price capital gains tax under Japanese law of about 50 to
70% of the floor price would still be deducted.
IV
The petitioners and respondents in both cases do not dispute the fact that the
Roppongi site and the three related properties were through reparations
agreements, that these were assigned to the government sector and that the
Roppongi property itself was specifically designated under the Reparations
Agreement to house the Philippine Embassy.
The nature of the Roppongi lot as property for public service is expressly
spelled out. It is dictated by the terms of the Reparations Agreement and the
corresponding contract of procurement which bind both the Philippine
government and the Japanese government.
There can be no doubt that it is of public dominion unless it is convincingly
shown that the property has become patrimonial. This, the respondents have
failed to do.
As property of public dominion, the Roppongi lot is outside the commerce of
man. It cannot be alienated. Its ownership is a special collective ownership for
general use and enjoyment, an application to the satisfaction of collective
needs, and resides in the social group. The purpose is not to serve the State
as a juridical person, but the citizens; it is intended for the common and public
welfare and cannot be the object of appropration. (Taken from 3 Manresa, 66-
69; cited in Tolentino, Commentaries on the Civil Code of the Philippines, 1963
Edition, Vol. II, p. 26).
The applicable provisions of the Civil Code are:
ART. 419. Property is either of public dominion or of private ownership.
ART. 420. The following things are property of public dominion
(1) Those intended for public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State, banks shores
roadsteads, and others of similar character;
(2) Those which belong to the State, without being for public use, and
are intended for some public service or for the development of the
national wealth.
ART. 421. All other property of the State, which is not of the character
stated in the preceding article, is patrimonial property.
The Roppongi property is correctly classified under paragraph 2 of Article 420
of the Civil Code as property belonging to the State and intended for some
public service.
Has the intention of the government regarding the use of the property been
changed because the lot has been Idle for some years? Has it become
patrimonial?
The fact that the Roppongi site has not been used for a long time for actual
Embassy service does not automatically convert it to patrimonial property. Any
such conversion happens only if the property is withdrawn from public use
(Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]). A
property continues to be part of the public domain, not available for private
appropriation or ownership until there is a formal declaration on the part of the
government to withdraw it from being such (Ignacio v. Director of Lands, 108
Phil. 335 [1960]).
The respondents enumerate various pronouncements by concerned public
officials insinuating a change of intention. We emphasize, however, that an
abandonment of the intention to use the Roppongi property for public service
and to make it patrimonial property under Article 422 of the Civil Code must be
definite Abandonment cannot be inferred from the non-use alone specially if
the non-use was attributable not to the government's own deliberate and
indubitable will but to a lack of financial support to repair and improve the
property (See Heirs of Felino Santiago v. Lazaro, 166 SCRA 368 [1988]).
Abandonment must be a certain and positive act based on correct legal
premises.
A mere transfer of the Philippine Embassy to Nampeidai in 1976 is not
relinquishment of the Roppongi property's original purpose. Even the failure
by the government to repair the building in Roppongi is not abandonment since
as earlier stated, there simply was a shortage of government funds. The recent
Administrative Orders authorizing a study of the status and conditions of
government properties in Japan were merely directives for investigation but
did not in any way signify a clear intention to dispose of the properties.
Executive Order No. 296, though its title declares an "authority to sell", does
not have a provision in its text expressly authorizing the sale of the four
properties procured from Japan for the government sector. The executive
order does not declare that the properties lost their public character. It merely
intends to make the properties available to foreigners and not to Filipinos
alone in case of a sale, lease or other disposition. It merely eliminates the
restriction under Rep. Act No. 1789 that reparations goods may be sold only
to Filipino citizens and one hundred (100%) percent Filipino-owned entities.
The text of Executive Order No. 296 provides:
Section 1. The provisions of Republic Act No. 1789, as amended, and
of other laws to the contrary notwithstanding, the above-mentioned
properties can be made available for sale, lease or any other manner
 of disposition to non-Filipino citizens or to entities owned by non-
Filipino citizens.
Executive Order No. 296 is based on the wrong premise or assumption that
the Roppongi and the three other properties were earlier converted into
alienable real properties. As earlier stated, Rep. Act No. 1789 differentiates
the procurements for the government sector and the private sector (Sections
2 and 12, Rep. Act No. 1789). Only the private sector properties can be sold
to end-users who must be Filipinos or entities owned by Filipinos. It is this
nationality provision which was amended by Executive Order No. 296.
Section 63 (c) of Rep. Act No. 6657 (the CARP Law) which provides as one of
the sources of funds for its implementation, the proceeds of the disposition of
the properties of the Government in foreign countries, did not withdraw the
Roppongi property from being classified as one of public dominion when it
mentions Philippine properties abroad. Section 63 (c) refers to properties
which are alienable and not to those reserved for public use or service. Rep
Act No. 6657, therefore, does not authorize the Executive Department to sell
the Roppongi property. It merely enumerates possible sources of future
funding to augment (as and when needed) the Agrarian Reform Fund created
under Executive Order No. 299. Obviously any property outside of the
commerce of man cannot be tapped as a source of funds.
The respondents try to get around the public dominion character of the
Roppongi property by insisting that Japanese law and not our Civil Code
should apply.
It is exceedingly strange why our top government officials, of all people, should
be the ones to insist that in the sale of extremely valuable government
property, Japanese law and not Philippine law should prevail. The Japanese
law - its coverage and effects, when enacted, and exceptions to its provision
is not presented to the Court It is simply asserted that the lex loci rei sitae or
Japanese law should apply without stating what that law provides. It is a ed on
faith that Japanese law would allow the sale.
We see no reason why a conflict of law rule should apply when no conflict of
law situation exists. A conflict of law situation arises only when: (1) There is a
dispute over the title or ownership of an immovable, such that the capacity to
take and transfer immovables, the formalities of conveyance, the essential
validity and effect of the transfer, or the interpretation and effect of a
conveyance, are to be determined (See Salonga, Private International Law,
1981 ed., pp. 377-383); and (2) A foreign law on land ownership and its
conveyance is asserted to conflict with a domestic law on the same matters.
Hence, the need to determine which law should apply.
In the instant case, none of the above elements exists.
The issues are not concerned with validity of ownership or title. There is no
question that the property belongs to the Philippines. The issue is the authority
of the respondent officials to validly dispose of property belonging to the State.
And the validity of the procedures adopted to effect its sale. This is governed
by Philippine Law. The rule of lex situs does not apply.
The assertion that the opinion of the Secretary of Justice sheds light on the
relevance of the lex situsrule is misplaced. The opinion does not tackle
the alienability of the real properties procured through reparations nor the
existence in what body of the authority to sell them. In discussing who are
capableof acquiring the lots, the Secretary merely explains that it is the foreign
law which should determine who can acquire the properties so that the
constitutional limitation on acquisition of lands of the public domain to Filipino
citizens and entities wholly owned by Filipinos is inapplicable. We see no point
in belaboring whether or not this opinion is correct. Why should we discuss
who can acquire the Roppongi lot when there is no showing that it can be sold?
The subsequent approval on October 4, 1988 by President Aquino of the
recommendation by the investigating committee to sell the Roppongi property
was premature or, at the very least, conditioned on a valid change in the public
character of the Roppongi property. Moreover, the approval does not have the
force and effect of law since the President already lost her legislative powers.
The Congress had already convened for more than a year.
Assuming for the sake of argument, however, that the Roppongi property is no
longer of public dominion, there is another obstacle to its sale by the
respondents.
There is no law authorizing its conveyance.
Section 79 (f) of the Revised Administrative Code of 1917 provides
Section 79 (f ) Conveyances and contracts to which the Government
is a party. In cases in which the Government of the Republic of the
Philippines is a party to any deed or other instrument conveying the
title to real estate or to any other property the value of which is in
excess of one hundred thousand pesos, the respective Department
Secretary shall prepare the necessary papers which, together with the
proper recommendations, shall be submitted to the Congress of the
Philippines for approval by the same. Such deed, instrument, or
contract shall be executed and signed by the President of the
Philippines on behalf of the Government of the Philippines unless the
 Government of the Philippines unless the authority therefor be
expressly vested by law in another officer. (Emphasis supplied)
The requirement has been retained in Section 48, Book I of the Administrative
Code of 1987 (Executive Order No. 292).
SEC. 48. Official Authorized to Convey Real Property. Whenever
real property of the Government is authorized by law to be
conveyed, the deed of conveyance shall be executed in behalf of the
government by the following:
(1) For property belonging to and titled in the name of the Republic of
the Philippines, by the President, unless the authority therefor is
expressly vested by law in another officer.
(2) For property belonging to the Republic of the Philippines but titled
in the name of any political subdivision or of any corporate agency or
instrumentality, by the executive head of the agency or instrumentality.
(Emphasis supplied)
It is not for the President to convey valuable real property of the government
on his or her own sole will. Any such conveyance must be authorized and
approved by a law enacted by the Congress. It requires executive and
legislative concurrence.
Resolution No. 55 of the Senate dated June 8, 1989, asking for the deferment
of the sale of the Roppongi property does not withdraw the property from public
domain much less authorize its sale. It is a mere resolution; it is not a formal
declaration abandoning the public character of the Roppongi property. In fact,
the Senate Committee on Foreign Relations is conducting hearings on Senate
Resolution No. 734 which raises serious policy considerations and calls for a
fact-finding investigation of the circumstances behind the decision to sell the
Philippine government properties in Japan.
The resolution of this Court in Ojeda v. Bidding Committee, et al., supra, did
not pass upon the constitutionality of Executive Order No. 296. Contrary to
respondents' assertion, we did not uphold the authority of the President to sell
the Roppongi property. The Court stated that the constitutionality of the
executive order was not the real issue and that resolving the constitutional
question was "neither necessary nor finally determinative of the case." The
Court noted that "[W]hat petitioner ultimately questions is the use of the
proceeds of the disposition of the Roppongi property." In emphasizing that "the
decision of the Executive to dispose of the Roppongi property to finance the
CARP ... cannot be questioned" in view of Section 63 (c) of Rep. Act No. 6657,
the Court did not acknowledge the fact that the property became alienable nor
did it indicate that the President was authorized to dispose of the Roppongi
property. The resolution should be read to mean that in case the Roppongi
property is re-classified to be patrimonial and alienable by authority of law, the
proceeds of a sale may be used for national economic development projects
including the CARP.
Moreover, the sale in 1989 did not materialize. The petitions before us question
the proposed 1990 sale of the Roppongi property. We are resolving the issues
raised in these petitions, not the issues raised in 1989.
Having declared a need for a law or formal declaration to withdraw the
Roppongi property from public domain to make it alienable and a need for
legislative authority to allow the sale of the property, we see no compelling
reason to tackle the constitutional issues raised by petitioner Ojeda.
The Court does not ordinarily pass upon constitutional questions unless these
questions are properly raised in appropriate cases and their resolution is
necessary for the determination of the case (People v. Vera, 65 Phil. 56
[1937]). The Court will not pass upon a constitutional question although
properly presented by the record if the case can be disposed of on some other
ground such as the application of a statute or general law (Siler v. Louisville
and Nashville R. Co., 213 U.S. 175, [1909], Railroad Commission v. Pullman
Co., 312 U.S. 496 [1941]).
The petitioner in G.R. No. 92013 states why the Roppongi property should not
be sold:
The Roppongi property is not just like any piece of property. It was
given to the Filipino people in reparation for the lives and blood of
Filipinos who died and suffered during the Japanese military
occupation, for the suffering of widows and orphans who lost their
loved ones and kindred, for the homes and other properties lost by
countless Filipinos during the war. The Tokyo properties are a
monument to the bravery and sacrifice of the Filipino people in the
face of an invader; like the monuments of Rizal, Quezon, and other
Filipino heroes, we do not expect economic or financial benefits from
them. But who would think of selling these monuments? Filipino honor
and national dignity dictate that we keep our properties in Japan as
memorials to the countless Filipinos who died and suffered. Even if we
should become paupers we should not think of selling them. For it
would be as if we sold the lives and blood and tears of our countrymen.
(Rollo- G.R. No. 92013, p.147)
The petitioner in G.R. No. 92047 also states:
 Roppongi is no ordinary property. It is one ceded by the Japanese
government in atonement for its past belligerence for the valiant
sacrifice of life and limb and for deaths, physical dislocation and
economic devastation the whole Filipino people endured in World War
II.
It is for what it stands for, and for what it could never bring back to life,
that its significance today remains undimmed, inspire of the lapse of
45 years since the war ended, inspire of the passage of 32 years since
the property passed on to the Philippine government.
Roppongi is a reminder that cannot should not be dissipated ...
(Rollo-92047, p. 9)
It is indeed true that the Roppongi property is valuable not so much because
of the inflated prices fetched by real property in Tokyo but more so because of
its symbolic value to all Filipinos veterans and civilians alike. Whether or
not the Roppongi and related properties will eventually be sold is a policy
determination where both the President and Congress must concur.
Considering the properties' importance and value, the laws on conversion and
disposition of property of public dominion must be faithfully followed.
WHEREFORE, IN VIEW OF THE FOREGOING, the petitions are GRANTED.
A writ of prohibition is issued enjoining the respondents from proceeding with
the sale of the Roppongi property in Tokyo, Japan. The February 20, 1990
Temporary Restraining Order is made PERMANENT.
SO ORDERED.
Melencio-Herrera, Paras, Bidin, Grio-Aquino and Regalado, JJ., concur.
Separate Opinions
CRUZ, J., concurring:
I concur completely with the excellent ponencia of Mr. Justice Gutierrez and
will add the following observations only for emphasis.
It is clear that the respondents have failed to show the President's legal
authority to sell the Roppongi property. When asked to do so at the hearing on
these petitions, the Solicitor General was at best ambiguous, although I must
add in fairness that this was not his fault. The fact is that there is -no such
authority. Legal expertise alone cannot conjure that statutory permission out
of thin air.
Exec. Order No. 296, which reads like so much legislative, double talk, does
not contain such authority. Neither does Rep. Act No. 6657, which simply
allows the proceeds of the sale of our properties abroad to be used for the
comprehensive agrarian reform program. Senate Res. No. 55 was a mere
request for the deferment of the scheduled sale of tile Roppongi property,
possibly to stop the transaction altogether; and ill any case it is not a law. The
sale of the said property may be authorized only by Congress through a duly
enacted statute, and there is no such law.
Once again, we have affirmed the principle that ours is a government of laws
and not of men, where every public official, from the lowest to the highest, can
act only by virtue of a valid authorization. I am happy to note that in the several
cases where this Court has ruled against her, the President of the Philippines
has submitted to this principle with becoming grace.
PADILLA, J., concurring:
I concur in the decision penned by Mr. Justice Gutierrez, Jr., I only wish to
make a few observations which could help in further clarifying the issues.
Under our tripartite system of government ordained by the Constitution, it is
Congress that lays down or determines policies. The President executes such
policies. The policies determined by Congress are embodied in legislative
enactments that have to be approved by the President to become law. The
President, of course, recommends to Congress the approval of policies but, in
the final analysis, it is Congress that is the policy - determining branch of
government.
The judiciary interprets the laws and, in appropriate cases, determines
whether the laws enacted by Congress and approved by the President, and
presidential acts implementing such laws, are in accordance with the
Constitution.
The Roppongi property was acquired by the Philippine government pursuant
to the reparations agreement between the Philippine and Japanese
governments. Under such agreement, this property was acquired by the
Philippine government for a specific purpose, namely, to serve as the site of
the Philippine Embassy in Tokyo, Japan. Consequently, Roppongi is a
property of public dominion and intended for public service, squarely falling
within that class of property under Art. 420 of the Civil Code, which provides:
Art. 420. The following things are property of public dominion :
(1) ...
 (2) Those which belong to the State, without being for public use, and
are intended for some public service or for the development of the
national wealth. (339a)
Public dominion property intended for public service cannot be alienated
unless the property is first transformed into private property of the state
otherwise known as patrimonial property of the state. 1 The transformation of
public dominion property to state patrimonial property involves, to my mind,
a policy decision. It is a policy decision because the treatment of the property
varies according to its classification. Consequently, it is Congress which can
decide and declare the conversion of Roppongi from a public dominion
property to a state patrimonial property. Congress has made no such decision
or declaration.
Moreover, the sale of public property (once converted from public dominion to
state patrimonial property) must be approved by Congress, for this again is a
matter of policy (i.e. to keep or dispose of the property). Sec. 48, Book 1 of the
Administrative Code of 1987 provides:
SEC. 48. Official Authorized to Convey Real Property. Whenever
real property of the Government is authorized by law to be conveyed,
the deed of conveyance shall be executed in behalf of the government
by the following:
(1) For property belonging to and titled in the name of the
Republic of the Philippines, by the President, unless the
authority therefor is expressly vested by law in another officer.
(2) For property belonging to the Republic of the Philippines
but titled in the name of any political subdivision or of any
corporate agency or instrumentality, by the executive head of
the agency or instrumentality. (Emphasis supplied)
But the record is bare of any congressional decision or approval to sell
Roppongi. The record is likewise bare of any congressional authority extended
to the President to sell Roppongi thru public bidding or otherwise.
It is therefore, clear that the President cannot sell or order the sale of Roppongi
thru public bidding or otherwise without a prior congressional approval, first,
converting Roppongi from a public dominion property to a state patrimonial
property, and, second, authorizing the President to sell the same.
ACCORDINGLY, my vote is to GRANT the petition and to make PERMANENT
the temporary restraining order earlier issued by this Court.
SARMIENTO, J., concurring:
The central question, as I see it, is whether or not the so-called "Roppongi
property' has lost its nature as property of public dominion, and hence, has
become patrimonial property of the State. I understand that the parties are
agreed that it was property intended for "public service" within the
contemplation of paragraph (2), of Article 430, of the Civil Code, and
accordingly, land of State dominion, and beyond human commerce. The lone
issue is, in the light of supervening developments, that is non-user thereof by
the National Government (for diplomatic purposes) for the last thirteen years;
the issuance of Executive Order No. 296 making it available for sale to any
interested buyer; the promulgation of Republic Act No. 6657, the
Comprehensive Agrarian Reform Law, making available for the program's
financing, State assets sold; the approval by the President of the
recommendation of the investigating committee formed to study the property's
utilization; and the issuance of Resolution No. 55 of the Philippine Senate
requesting for the deferment of its disposition it, "Roppongi", is still property of
the public dominion, and if it is not, how it lost that character.
When land of the public dominion ceases to be one, or when the change takes
place, is a question our courts have debated early. In a 1906 decision, 1 it was
held that property of the public dominion, a public plaza in this instance,
becomes patrimonial upon use thereof for purposes other than a plaza. In a
later case, 2 this ruling was reiterated. Likewise, it has been held that land,
originally private property, has become of public dominion upon its donation to
the town and its conversion and use as a public plaza. 3 It is notable that under
these three cases, the character of the property, and any change occurring
therein, depends on the actual use to which it is dedicated. 4
Much later, however, the Court held that "until a formal declaration on the part
of the Government, through the executive department or the Legislative, to the
effect that the land . . . is no longer needed for [public] service- for public use
or for special industries, [it] continue[s] to be part of the public [dominion], not
available for private expropriation or ownership." 5 So also, it was ruled that a
political subdivision (the City of Cebu in this case) alone may declare (under
its charter) a city road abandoned and thereafter, to dispose of it. 6
In holding that there is "a need for a law or formal declaration to withdraw the
Roppongi property from public domain to make it alienable and a land for
legislative authority to allow the sale of the property" 7the majority lays stress
to the fact that: (1) An affirmative act executive or legislative is necessary
to reclassify property of the public dominion, and (2) a legislative decree is
required to make it alienable. It also clears the uncertainties brought about by
earlier interpretations that the nature of property-whether public or patrimonial
is predicated on the manner it is actually used, or not used, and in the same
breath, repudiates the Government's position that the continuous non-use of
"Roppongi", among other arguments, for "diplomatic purposes", has turned it
into State patrimonial property.
I feel that this view corresponds to existing pronouncements of this Court,
among other things, that: (1) Property is presumed to be State property in the
absence of any showing to the contrary; 8 (2) With respect to forest lands, the
same continue to be lands of the public dominion unless and until reclassified
by the Executive Branch of the Government; 9 and (3) All natural resources,
under the Constitution, and subject to exceptional cases, belong to the State. 10
I am elated that the Court has banished previous uncertainties.
FELICIANO, J., dissenting
With regret, I find myself unable to share the conclusions reached by Mr.
Justice Hugo E. Gutierrez, Jr.
For purposes of this separate opinion, I assume that the piece of land located
in 306 Roppongi, 5-Chome, Minato-ku Tokyo, Japan (hereinafter referred to
as the "Roppongi property") may be characterized as property of public
dominion, within the meaning of Article 420 (2) of the Civil Code:
[Property] which belong[s] to the State, without being for public use,
and are intended for some public service -.
It might not be amiss however, to note that the appropriateness of trying to
bring within the confines of the simple threefold classification found in Article
420 of the Civil Code ("property for public use property "intended for some
public service" and property intended "for the development of the national
wealth") all property owned by the Republic of the Philippines whether found
within the territorial boundaries of the Republic or located within the territory of
another sovereign State, is not self-evident. The first item of the classification
property intended for public use can scarcely be properly applied to property
belonging to the Republic but found within the territory of another State. The
third item of the classification property intended for the development of the
national wealth is illustrated, in Article 339 of the Spanish Civil Code of 1889,
by mines or mineral properties. Again, mineral lands owned by a sovereign
State are rarely, if ever, found within the territorial base of another sovereign
State. The task of examining in detail the applicability of the classification set
out in Article 420 of our Civil Code to property that the Philippines happens to
own outside its own boundaries must, however, be left to academicians.
For present purposes, too, I agree that there is no question of conflict of laws
that is, at the present time, before this Court. The issues before us relate
essentially to authority to sell the Roppongi property so far as Philippine law is
concerned.
The majority opinion raises two (2) issues: (a) whether or not the Roppongi
property has been converted into patrimonial property or property of the private
domain of the State; and (b) assuming an affirmative answer to (a), whether
or not there is legal authority to dispose of the Roppongi property.
I
Addressing the first issue of conversion of property of public dominion intended
for some public service, into property of the private domain of the Republic, it
should be noted that the Civil Code does not address the question of who has
authority to effect such conversion. Neither does the Civil Code set out or refer
to any procedure for such conversion.
Our case law, however, contains some fairly explicit pronouncements on this
point, as Justice Sarmiento has pointed out in his concurring opinion.
In Ignacio v. Director of Lands (108 Phils. 335 [1960]), petitioner Ignacio
argued that if the land in question formed part of the public domain, the trial
court should have declared the same no longer necessary for public use or
public purposes and which would, therefore, have become disposable and
available for private ownership. Mr. Justice Montemayor, speaking for the
Court, said:
Article 4 of the Law of Waters of 1866 provides that when a portion of
the shore is no longer washed by the waters of the sea and is not
necessary for purposes of public utility, or for the establishment of
special industries, or for coast-guard service, the government shall
declare it to be the property of the owners of the estates adjacent
thereto and as an increment thereof. We believe that only the
executive and possibly the legislative departments have the authority
and the power to make the declaration that any land so gained by the
sea, is not necessary for purposes of public utility, or for the
establishment of special industries, or for coast-guard service. If no
such declaration has been made by said departments, the lot in
question forms part of the public domain. (Natividad v. Director of
Lands, supra.)
The reason for this pronouncement, according to this Tribunal in the
case of Vicente Joven y Monteverde v. Director of Lands, 93 Phil., 134
(cited in Velayo's Digest, Vol. 1, p. 52).
... is undoubtedly that the courts are neither primarily called upon, nor
indeed in a position to determine whether any public land are to be
 used for the purposes specified in Article 4 of the Law of Waters.
Consequently, until a formal declaration on the part of the
Government, through the executive department or the Legislature, to
the effect that the land in question is no longer needed for coast-guard
service, for public use or for special industries, they continue to be part
of the public domain not available for private appropriation or
ownership.(108 Phil. at 338-339; emphasis supplied)
Thus, under Ignacio, either the Executive Department or the Legislative
Department may convert property of the State of public dominion into
patrimonial property of the State. No particular formula or procedure of
conversion is specified either in statute law or in case law. Article 422 of the
Civil Code simply states that: "Property of public dominion, when no longer
intended for public use or for public service, shall form part of the patrimonial
property of the State". I respectfully submit, therefore, that the only
requirement which is legitimately imposable is that the intent to convert must
be reasonably clear from a consideration of the acts or acts of the Executive
Department or of the Legislative Department which are said to have effected
such conversion.
The same legal situation exists in respect of conversion of property of public
dominion belonging to municipal corporations, i.e., local governmental units,
into patrimonial property of such entities. In CebuOxygen Acetylene v.
Bercilles (66 SCRA 481 [1975]), the City Council of Cebu by resolution
declared a certain portion of an existing street as an abandoned road, "the
same not being included in the city development plan". Subsequently, by
another resolution, the City Council of Cebu authorized the acting City Mayor
to sell the land through public bidding. Although there was no formal and
explicit declaration of conversion of property for public use into patrimonial
property, the Supreme Court said:
xxx xxx xxx
(2) Since that portion of the city street subject of petitioner's application
for registration of title was withdrawn from public use, it follows that
such withdrawn portion becomes patrimonial property which can be
the object of an ordinary contract.
Article 422 of the Civil Code expressly provides that "Property of public
dominion, when no longer intended for public use of for public service,
shall form part of the patrimonial property of the State."
Besides, the Revised Charter of the City of Cebu heretofore quoted,
in very clear and unequivocal terms, states that "Property thus
withdrawn from public servitude may be used or conveyed for any
purpose for which other real property belonging to the City may be
lawfully used or conveyed."
Accordingly, the withdrawal of the property in question from public use
and its subsequent sale to the petitioner is valid. Hence, the petitioner
has a registrable title over the lot in question. (66 SCRA at 484-;
emphasis supplied)
Thus, again as pointed out by Sarmiento J., in his separate opinion, in the case
of property owned by municipal corporations simple non-use or the actual
dedication of public property to some use other than "public use" or some
"public service", was sufficient legally to convert such property into patrimonial
property (Municipality of Oas v. Roa, 7 Phil. 20 [1906]- Municipality of
Hinunganan v. Director of Lands 24 Phil. 124 [1913]; Province of Zamboanga
del Norte v. City of Zamboanga, 22 SCRA 1334 (1968).
I would also add that such was the case not only in respect of' property of
municipal corporations but also in respect of property of the State itself.
Manresa in commenting on Article 341 of the 1889 Spanish Civil Code which
has been carried over verbatim into our Civil Code by Article 422 thereof,
wrote:
La dificultad mayor en todo esto estriba, naturalmente, en fijar el
momento en que los bienes de dominio publico dejan de serlo. Si la
Administracion o la autoridad competente legislative realizan qun acto
en virtud del cual cesa el destino o uso publico de los bienes de que
se trata naturalmente la dificultad queda desde el primer momento
resuelta. Hay un punto de partida cierto para iniciar las relaciones
juridicas a que pudiera haber lugar Pero puede ocurrir que no haya
taldeclaracion expresa, legislativa or administrativa, y, sin embargo,
cesar de hecho el destino publico de los bienes; ahora bien, en este
caso, y para los efectos juridicos que resultan de entrar la cosa en el
comercio de los hombres,' se entedera que se ha verificado la
conversion de los bienes patrimoniales?
El citado tratadista Ricci opina, respecto del antiguo Codigo italiano,
por la afirmativa, y por nuestra parte creemos que tal debe ser la
soluciion. El destino de las cosas no depende tanto de una
declaracion expresa como del uso publico de las mismas, y cuanda el
uso publico cese con respecto de determinados bienes, cesa tambien
su situacion en el dominio publico. Si una fortaleza en ruina se
abandona y no se repara, si un trozo de la via publica se abandona
tambien por constituir otro nuevo an mejores condiciones....ambos
bienes cesan de estar Codigo, y leyes especiales mas o memos
 administrativas. (3 Manresa, Comentarios al Codigo Civil Espanol, p.
128 [7a ed.; 1952) (Emphasis supplied)
The majority opinion says that none of the executive acts pointed to by the
Government purported, expressly or definitely, to convert the Roppongi
property into patrimonial property of the Republic. Assuming that to be the
case, it is respectfully submitted that cumulative effect of the executive acts
here involved was to convert property originally intended for and devoted to
public service into patrimonial property of the State, that is, property
susceptible of disposition to and appropration by private persons. These
executive acts, in their totality if not each individual act, make crystal clear the
intent of the Executive Department to effect such conversion. These executive
acts include:
(a) Administrative Order No. 3 dated 11 August 1985, which created a
Committee to study the disposition/utilization of the Government's property in
Japan, The Committee was composed of officials of the Executive
Department: the Executive Secretary; the Philippine Ambassador to Japan;
and representatives of the Department of Foreign Affairs and the Asset
Privatization Trust. On 19 September 1988, the Committee recommended to
the President the sale of one of the lots (the lot specifically in Roppongi)
through public bidding. On 4 October 1988, the President approved the
recommendation of the Committee.
On 14 December 1988, the Philippine Government by diplomatic note
informed the Japanese Ministry of Foreign Affairs of the Republic's intention
to dispose of the property in Roppongi. The Japanese Government through its
Ministry of Foreign Affairs replied that it interposed no objection to such
disposition by the Republic. Subsequently, the President and the Committee
informed the leaders of the House of Representatives and of the Senate of the
Philippines of the proposed disposition of the Roppongi property.
(b) Executive Order No. 296, which was issued by the President on 25 July
1987. Assuming that the majority opinion is right in saying that Executive Order
No. 296 is insufficient to authorize the sale of the Roppongi property, it is here
submitted with respect that Executive Order No. 296 is more than sufficient to
indicate an intention to convert the property previously devoted to public
service into patrimonial property that is capable of being sold or otherwise
disposed of
(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic or for any
other public purposes. Assuming (but only arguendo) that non-use does
not, by itself, automatically convert the property into patrimonial property. I
respectfully urge that prolonged non-use, conjoined with the other factors here
listed, was legally effective to convert the lot in Roppongi into patrimonial
property of the State. Actually, as already pointed out, case law involving
property of municipal corporations is to the effect that simple non-use or the
actual dedication of public property to some use other than public use or public
service, was sufficient to convert such property into patrimonial property of the
local governmental entity concerned. Also as pointed out above, Manresa
reached the same conclusion in respect of conversion of property of the public
domain of the State into property of the private domain of the State.
The majority opinion states that "abandonment cannot be inferred from the
non-use alone especially if the non-use was attributable not to the
Government's own deliberate and indubitable will but to lack of financial
support to repair and improve the property" (Majority Opinion, p. 13). With
respect, it may be stressed that there is no abandonment involved here,
certainly no abandonment of property or of property rights. What is involved is
the charge of the classification of the property from property of the public
domain into property of the private domain of the State. Moreover, if for
fourteen (14) years, the Government did not see fit to appropriate whatever
funds were necessary to maintain the property in Roppongi in a condition
suitable for diplomatic representation purposes, such circumstance may, with
equal logic, be construed as a manifestation of the crystalizing intent to change
the character of the property.
(d) On 30 March 1989, a public bidding was in fact held by the Executive
Department for the sale of the lot in Roppongi. The circumstance that this
bidding was not successful certainly does not argue against an intent to
convert the property involved into property that is disposable by bidding.
The above set of events and circumstances makes no sense at all if it does
not, as a whole, show at least the intent on the part of the Executive
Department (with the knowledge of the Legislative Department) to convert the
property involved into patrimonial property that is susceptible of being sold.
II
Having reached an affirmative answer in respect of the first issue, it is
necessary to address the second issue of whether or not there exists legal
authority for the sale or disposition of the Roppongi property.
The majority opinion refers to Section 79(f) of the Revised Administrative Code
of 1917 which reads as follows:
SEC. 79 (f). Conveyances and contracts to which the
Government is a party. In cases in which the Government
of the Republic of the Philippines is a party to any deed or
other instrument conveying the title to real estate or to any
 other property the value of which is in excess of one hundred
thousand pesos, the respective Department Secretary shall
prepare the necessary papers which, together with the proper
recommendations, shall be submitted to the Congress of the
Philippines for approval by the same. Such deed, instrument,
or contract shall be executed and signed by the President of
the Philippines on behalf of the Government of the Philippines
unless the authority therefor be expressly vested by law in
another officer. (Emphasis supplied)
The majority opinion then goes on to state that: "[T]he requirement has been
retained in Section 4, Book I of the Administrative Code of 1987 (Executive
Order No. 292)" which reads:
SEC. 48. Official Authorized to Convey Real Property.
Whenever real property of the Government is authorized by
law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:
(1) For property belonging to and titled in the name of the Republic of
the Philippines, by the President, unless the authority therefor is
expressly vested by law in another officer.
(2) For property belonging to the Republic of the Philippines but titled
in the name of any political subdivision or of any corporate agency or
instrumentality, by the executive head of the agency or instrumentality.
(Emphasis supplied)
Two points need to be made in this connection. Firstly, the requirement of
obtaining specific approval of Congress when the price of the real
property being disposed of is in excess of One Hundred Thousand Pesos
(P100,000.00) under the Revised Administrative Code of 1917, has
been deleted from Section 48 of the 1987 Administrative Code. What Section
48 of the present Administrative Code refers to isauthorization by law for the
conveyance. Section 48 does not purport to be itself a source of legal authority
for conveyance of real property of the Government. For Section 48 merely
specifies the official authorized to execute and sign on behalf of the
Government the deed of conveyance in case of such a conveyance.
Secondly, examination of our statute books shows that authorization by law
for disposition of real property of the private domain of the Government, has
been granted by Congress both in the form of (a) a general, standing
authorization for disposition of patrimonial property of the Government; and (b)
specific legislation authorizing the disposition of particular pieces of the
Government's patrimonial property.
Standing legislative authority for the disposition of land of the private domain
of the Philippines is provided by Act No. 3038, entitled "An Act Authorizing the
Secretary of Agriculture and Natural Resources to Sell or Lease Land of the
Private Domain of the Government of the Philippine Islands (now Republic of
the Philippines)", enacted on 9 March 1922. The full text of this statute is as
follows:
Be it enacted by the Senate and House of Representatives of the
Philippines in Legislature assembled and by the authority of the same:
SECTION 1. The Secretary of Agriculture and Natural Resources
(now Secretary of the Environment and Natural Resources) is hereby
authorized to sell or lease land of the private domain of the
Government of the Philippine Islands, or any part thereof, to such
persons, corporations or associations as are, under the provisions of
Act Numbered Twenty-eight hundred and seventy-four, (now
Commonwealth Act No. 141, as amended) known as the Public Land
Act, entitled to apply for the purchase or lease or agricultural public
land.
SECTION 2. The sale of the land referred to in the preceding
section shall, if such land is agricultural, be made in the manner and
subject to the limitations prescribed in chapters five and six,
respectively, of said Public Land Act, and if it be classified differently,
in conformity with the provisions of chapter nine of said Act: Provided,
however, That the land necessary for the public service shall be
exempt from the provisions of this Act.
SECTION 3. This Act shall take effect on its approval.
Approved, March 9, 1922. (Emphasis supplied)
Lest it be assumed that Act No. 3038 refers only to agricultural lands of the
private domain of the State, it must be noted that Chapter 9 of the old Public
Land Act (Act No. 2874) is now Chapter 9 of the present Public Land Act
(Commonwealth Act No. 141, as amended) and that both statutes refer to:
"any tract of land of the public domain which being neither timber nor mineral
land, is intended to be used forresidential purposes or for commercial or
industrial purposes other than agricultural" (Emphasis supplied).itc-asl In
other words, the statute covers the sale or lease or residential, commercial or
industrial land of the private domain of the State.
Implementing regulations have been issued for the carrying out of the
provisions of Act No. 3038. On 21 December 1954, the then Secretary of
Agriculture and Natural Resources promulgated Lands Administrative Orders
Nos. 7-6 and 7-7 which were entitled, respectively: "Supplementary
Regulations Governing the Sale of the Lands of the Private Domain of the
Republic of the Philippines"; and "Supplementary Regulations Governing
the Lease of Lands of Private Domain of the Republic of the Philippines" (text
in 51 O.G. 28-29 [1955]).
It is perhaps well to add that Act No. 3038, although now sixty-eight (68) years
old, is still in effect and has not been repealed. 1
Specific legislative authorization for disposition of particular patrimonial
properties of the State is illustrated by certain earlier statutes. The first of these
was Act No. 1120, enacted on 26 April 1904, which provided for the disposition
of the friar lands, purchased by the Government from the Roman Catholic
Church, to bona fide settlers and occupants thereof or to other persons.
In Jacinto v. Director of Lands(49 Phil. 853 [1926]), these friar lands were held
to be private and patrimonial properties of the State. Act No. 2360, enacted on
-28 February 1914, authorized the sale of the San Lazaro Estate located in the
City of Manila, which had also been purchased by the Government from the
Roman Catholic Church. In January 1916, Act No. 2555 amended Act No.
2360 by including therein all lands and buildings owned by the Hospital and
the Foundation of San Lazaro theretofor leased by private persons, and which
were also acquired by the Philippine Government.
After the enactment in 1922 of Act No. 3038, there appears, to my knowledge,
to be only one statute authorizing the President to dispose of a specific piece
of property. This statute is Republic Act No. 905, enacted on 20 June 1953,
which authorized the
respectfully submit that such position is not any more unusual or strange than
the assumption that Article 420 of the Civil Code applies not only to property
of the Republic located within Philippine territory but also to property found
outside the boundaries of the Republic.
It remains to note that under the well-settled doctrine that heads of Executive
Departments are alter egosof the President (Villena v. Secretary of the Interior,
67 Phil. 451 [1939]), and in view of the constitutional power of control exercised
by the President over department heads (Article VII, Section 17,1987
Constitution), the President herself may carry out the function or duty that is
specifically lodged in the Secretary of the Department of Environment and
Natural Resources (Araneta v. Gatmaitan 101 Phil. 328 [1957]). At the very
least, the President retains the power to approve or disapprove the exercise
of that function or duty when done by the Secretary of Environment and Natural
Resources.
It is hardly necessary to add that the foregoing analyses and submissions
relate only to the austere question of existence of legal power or authority.
They have nothing to do with much debated questions of wisdom or propriety
or relative desirability either of the proposed disposition itself or of the
proposed utilization of the anticipated proceeds of the property involved.
These latter types of considerations He within the sphere of responsibility of
the political departments of government the Executive and the Legislative
authorities.
For all the foregoing, I vote to dismiss the Petitions for Prohibition in both G.R.
Nos. 92013 and 92047.

President to sell an Identified parcel of land of the private domain of the Fernan, C.J., Narvasa, Gancayco, Cortes and Medialdea, JJ., concurring.
National Government to the National Press Club of the Philippines, and to
other recognized national associations of professionals with academic
standing, for the nominal price of P1.00. It appears relevant to note that
Republic Act No. 905 was not an outright disposition in perpetuity of the
property involved- it provided for reversion of the property to the National
Government in case the National Press Club stopped using it for its
headquarters. What Republic Act No. 905 authorized was really
a donation, and not a sale.

The basic submission here made is that Act No. 3038 provides standing
legislative authorization for disposition of the Roppongi property which, in my
view, has been converted into patrimonial property of the Republic. 2

To some, the submission that Act No. 3038 applies not only to lands of the
private domain of the State located in the Philippines but also to patrimonial
property found outside the Philippines, may appear strange or unusual. I