You are on page 1of 22

December 19, 1985

January 7, 1986

EN BANC

G.R. Nos. 72915, 72922, 72923, 72924, 72927, 72928, 72935, 72954, 72957,
72968 & 72986

RESOLUTION

Gentlemen :

Quoted hereunder, for your information, is a resolution of the Court En


Banc dated, December 19, 1985. ATcEDS

"G.R. No. 72915 (Philippine Bar Association, et al. vs. The Commission on
Elections, et al.); G.R. No. 72922 (Martiniano P. Vivo, et al. vs. Commission on
Elections, et al.); G.R. No. 72923 (MP Aquilino Q. Pimentel, Jr., et al. vs. The
Treasurer of the Philippines, et al.); G.R. No. 72924 (The Movement of
Attorneys for Brotherhood, Integrity and Nationalism, Inc. [MABINI], et al. vs.
The Commission on Elections, et al.); G.R. No. 72927 (The Liberal Party, et al.
vs. The National Treasurer of the Philippines); G.R. No. 72928 (Concerned
Women of the Philippines, et al. vs. Hon. Maximiano Savellano, et al.); G.R.
No. 72935 (Alberto G. Romulo, et al. vs. Commission on Elections, et al.); G.R.
No. 72954 (Victor C. Avecilla, et al. vs. Commission on Elections); G.R. No.
72957 (National Bar Association of the Philippines, et al. vs. Commission on
Elections, et al.); G.R. No. 72968 (Laban ng Bayan [LABAN], et al. vs. The
Commission on Elections, et al.) and G.R. No. 72986 (Juan T. David vs. The
Commission on Elections, et al.). After considering all the pleadings and
deliberating on the issues raised in the petitions as well as on the oral
arguments of the parties and the amici curiae in the hearings held in these
cases, Chief Justice Ramon C. Aquino and six (6) Justices, namely, Justices
Claudio Teehankee, Hermogenes Concepcion, Jr., Vicente Abad Santos, Efren I.
Plana, Venicio T. Escolin and Lorenzo Relova, voted to DISMISS the petitions in
these cases and to DENY the prayer for the issuance of an injunction
restraining respondents from holding the election on February 7, 1986. In the
opinion of Chief Justice Aquino, B.P. 883 is constitutional.
"Justices Hugo Gutierrez, Jr., B.S. de la Fuente, Seran R. Cuevas, Nestor
B. Alampay and Lino M. Patajo voted to DECLARE B.P. 883 unconstitutional
and to grant the injunction prayed for.
"Justice Teehankee is of the opinion that inasmuch as there are less than
ten votes in favor of declaring B.P. Blg. 883 unconstitutional, the petitions in
these cases are hereby dismissed and the writs therein prayed for are denied.
"This is in accordance with the opinion in Gonzales vs. COMELEC, 21
SCRA 802 and Javellana vs. Executive Secretary, 50 SCRA 141.
CD Technologies Asia, Inc. 2016 cdasiaonline.com
SCRA 802 and Javellana vs. Executive Secretary, 50 SCRA 141.
"Justices Teehankee, Plana, Escolin, Relova, Gutierrez, Jr., de la Fuente,
Alampay and Patajo led separate opinions.
"This resolution is without prejudice to the ling of separate opinions by
the other Members of this Court.
"At the session of January 7, 1986, the Court noted that its act of
dismissing the petitions had not been formally stated in its basic Resolution of
December 19, 1985. The Court therefore authorizes the insertion of the
following dispositive portion:
'Accordingly, inasmuch as there are less than the required ten (10) votes
to declare Batas Pambansa Bilang 883 unconstitutional, the petitions in
these cases are hereby DISMISSED and the writs therein prayed for are
DENIED.'"
"Chief Justice Aquino is of the opinion that the revision of the December
19, 1985 resolution is totally unnecessary. It is clear. It is understood that the
petitions are dismissed. The public and the Comelec understood that the
petitions were dismissed." ETaSDc

Melencio-Herrera, * J., took no part in all these cases.

Very truly yours,

(SGD.) GLORIA C. PARAS


Clerk of Court

G.R. No. 72915 (PBA ET AL. VS. COMELEC ET AL.) and other
consolidated petitions.

TEEHANKEE, J., concurring:

I vote for the dismissal of the petition for prohibition against


enforcement of BP Blg. 883 on the ground that no clear case has been made
of an absolute void of power and authority that would warrant its nullication
and that prohibition is not a remedy for acts done that can no longer be
undone.
T h e stated issue is quite simple: Is B.P. Blg. 883 calling for special
national elections on February 7, 1986 for the oces of President and Vice-
President of the Philippines ( for the rst time since the pre-martial era 1969
presidential elections) unconstitutional, and should this Court therefore stop
and prohibit the holding of the elections?
Upon the ling on December 3rd of the lead and other petitions at bar,
four members of the Court (Justices Abad Santos, Relova, Gutierrez, Jr. and
myself) voted per the Court's Resolution of December 5th to issue a
temporary restraining order against enforcement of the Act and to hear the
petitions on last December 12th so as to maintain the status quo and
thereafter speedily resolve the issue and prevent the people's expectations
from reaching a point of no return. Our vote did not gain the required
concurrence of a majority of eight. Instead the Court granted the parties
CD Technologies Asia, Inc. 2016 cdasiaonline.com
substantial periods for ling of respondents' comment and petitioners' replies
and to hear the case only after two weeks on December 17th (continued to
December 18th) with a clear consensus to take a vote and resolve the
petitions immediately after the hearing.
It is of public knowledge and record, as pointed out by former Vice-
President, Senator and Executive Committee Member Emmanuel N. Pelaez,
amicus curiae, who helped in drafting the 1984 constitutional amendments
abolishing the Executive Committee and restoring the Oce of Vice-President
as the President's successor, that such restoration was not made eective
immediately, but only at the end of the incumbent President's term on June
30, 1987 in view of his oft-expressed "allergy to vice-presidents." Hence, Sen.
Pelaez submits that the President's letter of conditional "resignation" (for the
word is nowhere used therein) "did not create the actual vacancy required in
Section 9, Article VII of the Constitution which could be the basis of the
holding of a special election for President and Vice-President earlier than the
regular election for such positions in 1987. The letter's intent was obvious: to
circumvent the constitutional provision which would, in eect, require the
President to actually vacate his oce in favor of the Speaker who would then
be the Acting President until a new one shall have been elected and shall have
qualied. . . . In prescribing the procedure to ll the oce of President in case
of vacancy therein occurred during the term of President Marcos, it [the cited
section] excluded any discretion on the part of the Batasang Pambansa to
legislate on the same subject. In fact, given the very detailed and precise steps
to be taken by the Batasang Pambansa under [the rst four paragraphs] for
the purpose of calling a special election to ll the vacancy, there was no room
for legislative action to supplement the same. BP Blg. 883 which is a
reproduction of Cabinet Bill No. 7, is in conict with the Constitution in that it
allows the President to continue holding oce after the calling of the special
election. To put it another way: the President's oer to cut his term short is
valid. The trouble is he does not go far enough: he should actually vacate the
oce forthwith." 1/ DCISAE

In the interval of over two weeks between December 3rd and now,
supervening facts and events have overtaken the Court and the petitions at
bar so much so that many of the petitions were withdrawn expressly or
abandoned impliedly. The political parties have since chosen and proclaimed
their candidates for president and vice-president and the frenzied campaign is
in full swing. President Ferdinand E. Marcos is quoted as saying: "we have
already spent a lot of energy and money on this thing." 2/ The foremost
exponent of the Act's unconstitutionality, M.P. Arturo Tolentino who strongly
held that "Mr. Marcos is not intended by the Constitution to succeed himself
before 1987 for an additional six years" and that "the President must rst
resign from oce in order for the constitutional mandate to go into eect and
for the Batasan speaker to assume the post of Acting President" 3/ had laid
aside his "personal objections" against the bill's validity and has accepted the
ruling KBL's nomination as vice-presidential candidate with President
Ferdinand E. Marcos as candidate for reelection in the scheduled February 7,
1986 national elections. The heretofore divided opposition has unied and
likewise presented their standard bearers Corazon "Cory" Aquino and former
Senator Salvador "Doy" Laurel, for president and vice-president, respectively.
President Marcos himself in his letter to the Batasang Pambansa 4/
CD Technologies Asia, Inc. 2016 cdasiaonline.com
"irrevocably vacati(ng) the position of President eective only when the
election is held and after the winner is proclaimed and qualied as President
by taking his oath oce ten (10) days after his proclamation" urgently
stresses that "there is no moment to lose", that "I am, therefore, left no choice
but to seek a new mandate in an election that will assess, as demanded by
the opposition, the policies and programs I am undertaking. Such an election
necessarily shortens my tenure. But the necessity arises from no less than the
time-honored principle of public accountability, inherent in a democracy and
explicit in our Constitution" and that the "nal settlement of these issues can
be achieved only through a presidential election."
The unied opposition has likewise realized the imperative urgency of
seeking the mandate and verdict of the people. Rather than insist on strict
compliance with the cited constitutional provision that the incumbent
President actually resign, vacate his oce and turn it over to the Speaker of
the Batasang Pambansa as Acting President, their standard bearers as the
parties most prejudiced have not led any suit or petition in intervention for
the purpose nor repudiated the scheduled election. Instead, the unied
opposition, including almost all other political parties of standing, (with the
exception of a few who have lost faith in the electoral process due to past
sorry experiences) have rallied behind the presidential candidacy of Cory
Aquino. In short, they have taken the President at his own terms and
conditions and will confront him at the scheduled February 7, 1986 elections
and have not insisted that he vacate the oce of president and its vast
powers. As Senator Pelaez reported to the Court: "(T)he Opposition's answer is
rm" they are willing to give the President this illegal handicap, so long as the
election is clean, fair and honest."
The real issue at bar has thus veered from the purely justiciable issue of
the questioned constitutionality of the Act due to the lack of an actual
vacancy in the oce of President and transformed itself into a political
question that can only be truly decided by the people in their sovereign
capacity in a fair, clean and honest election. (Javellana vs. Exec. Secretary, 50
SCRA 30). Stated dierently, may this Court at this advanced stage stop the
holding of the elections?
Labor Minister Blas Ople, an articulate KBL spokesman, stressed that the
people's minds have been prepared and conditioned to expect the holding of
the February 7th, 1986 presidential elections and that the Court "from its
ivory tower" should not stand in the way. (This nation-wide perception that
the great majority of the people want to express their will in the special
election as the best chance for democracy's survival is reected in all sectors
of the press, be they establishment, neutral or opposition.) As reported by the
press: "Ople said the high court, which did not issue a restraining order to stop
preparations for the special elections, "will have to take judicial notice of a fait
accompli the elections are on. He said the KBL, and the opposition have
formed a consensus by deed by nominating their ocial tickets, campaigning
and spending, while the people 'from whom all sovereignty emanates' have
been conditioned to expect an election. . . . The people and the world, Ople
said, will not believe that the administration did not help inuence a court
annulment of the elections, no matter how unfair this charge of interference
in judicial independence might be. Thus, he said, the cancellation of the
elections 'can only aggravate the prevailing crisis and the President may nd
CD Technologies Asia, Inc. 2016 cdasiaonline.com
it dicult to govern eectively. 'Here and abroad, Ople said, there will be calls
for the President to step down and allow an election under Article 7, Section 9
of the Constitution, to clear the last remaining obstacle to an election which,
both sides now agree, should be held to 'break a dangerous stalemate in both
the political and economic climates' in the face of 'issues threatening
national survival.' Ople said a political system that calls an election and then
calls it o after the momentum has built up will not be received kindly by the
people. An election, he said 'should be treated with respect and the majesty it
deserved.' It gives meaning to the central directing principle of the
Constitution that all sovereignty emanates from the people, he said." 5/ cAHIST

Senator Pelaez formulated the same political question in this wise:


"These supervening events . . . may have converted the snap poll issue into a
political one, which would remove from the Supreme Court the authority to
stop present snap poll activities on its tracks. . . . From the standpoint of
constitutional government, what has recently happened represents a giant
step, the biggest stride yet made by our people in their struggle for the
restoration of freedom and democracy, which were shattered by the
declaration of martial law. Four elections have since been held in 1978 for the
interim Batasan Pambansa, in 1980 for local ocials, in 1981 for President,
and in 1984 for the present Batasan. None of these elections could be said to
have been truly democratic, mainly due to the absence of a strong, united
opposition. Today, by some miracle, the Opposition has become united, so that
a truly one-on-one contest for the Presidency can be held and the two-party
system has suddenly become a reality. These are substantial gains that should
not be frittered away by postponing the Presidential and Vice-Presidential
election to mid-1987. With these developments, the issue has been decided by
the political will of the people. This Honorable Court should not put obstacles
to their exercise of that will. Beyond these considerations, national survival
depends on the forthcoming snap poll.
"Then the President goes on to state that the mandate he received from
the people in 1981 is no longer valid and that to go on he needs a new
mandate. Here is a confession that he has reached a blank wall, that he can
no longer lead the nation, much less achieve his economic and other programs
on the basis of his 1981 election. The Presidency has lost its capacity to
govern. Hence the people must be given a chance to decide; either to re-elect
the incumbent or choose a new leader.
"I would like to commend the President for his manly response. He seeks
the people's judgment now. And it is a wonderful chance for the people either
to renew their mandate to him or elect a new leader. The Supreme Court
should not stand in the way."
A perceptive columnist has expressed the same view thus: "(T)o say that
the political situation of the country is unstable is to belabor the obvious. The
nation is struggling out of an unprecedentedly severe economic crisis while
ghting o a growing communist-led insurgency. Government's credibility has
been questioned, as has been President Marcos' ability to lead the nation to
normalcy, hence the coming political exercise. Indeed, the Filipino nation has
been titillated by the prospect of a change." He quotes MP Renato Cayetano's
plea that "(I)t is only fair for the Supreme Court to tell the parties and the
people whether the questioned law is only part of a charade or a serious
attempt to seek a new mandate for the incumbent in Malacaang. Cayetano
CD Technologies Asia, Inc. 2016 cdasiaonline.com
attempt to seek a new mandate for the incumbent in Malacaang. Cayetano
says 'Any delay will only exacerbate the political situation. The Supreme
Court should not contribute to the possible destabilization of the government.
The consequences could be horrifying.'" 6/
Retired Chief Justice Enrique M. Fernando and former Senator Ambrosio
Padilla as amici curiae have likewise urged the Court not to prevent the
electorate from giving expression to the people's sovereign will at the
scheduled national election. Chief Justice Fernando has submitted that "such a
vacancy arising from a voluntary act of an incumbent of the Presidential oce
inspired by the desire to seek a fresh mandate from the sovereign people is a
novel situation not contemplated by the framers of the 1981 amendments to
the 1973 Constitution." Senator Padilla noting that both the President and the
Batasang Pambansa having acted in favor of the holding of the scheduled
national election, submitted that the Court should defer to the exercise of the
people's public right to vote and to express their judgment, since there is no
issue or question more political than the election.AHEDaI

From the realistic standpoint, what should be borne in mind is that


President Marcos has, through his "post-dated resignation" eectively
shortened by sixteen (16) months his tenure (which would have lasted to
June 30, 1987) to February 1986, when his successor-elect, be it himself or his
opponent Cory Aquino, takes his/her oath of oce after proclamation as the
winner. Similarly, the Act has accelerated the restoration of the stabilizing
oce of Vice-President to succeed the President in the event of the latter's
permanent disability, death, removal from oce or resignation.
The scheduled election may indeed well be Philippine democracy's last
chance. UP President Edgardo J. Angara expressed it aptly when he wrote that
"(T)he threat to a democratic society comes either from the dictatorship of the
right or the totalitarianism of the left. . . . The snap election will provide an
opportunity for bringing these breakaway members back to the center. In a
sense, the election is a process of reunication behind the democratic
alternative. When the center of society which constitutes the majority is
given full and unhampered expression in the polls, the democratic system
triumphs and the national consensus that will emerge is a strong force for
future governance. . . . Whichever way the votes go, what really matters is
the majority act of rearming the ecacy of the democratic process. For the
center to emerge unied behind the democratic system is the historic lesson
which the snap elections may provide. . . . Prescinding from the legal issues
involved, the holding of the snap elections seems to have gained popular
support not only from the various political camps but also from other sectors
as well. The prevailing sentiment seems to be this waiting for the 1987
Presidential race may be too late for reasons already properly articulated in
other forums."
I wish to express my appreciation for the valuable insights and
perceptions that the three distinguished amici curiae have furnished the Court
at the hearings. The events that have transpired since December 3rd, as the
Court did not issue any restraining order, have turned the issue into a political
question which can be truly decided only by the people in their sovereign
capacity at the scheduled election, which hopefully will be clean, fair and
honest. (Let there be a fervent prayer that the Comelec with its past ip-
opping decisions and orders as recorded in our jurisprudence, will this time
CD Technologies Asia, Inc. 2016 cdasiaonline.com
realize that any further desecration of a free and fair election process will spell
disaster for the cause of the peaceful democratic process.) The Court cannot
stand in the way of letting the people decide through their ballot, either to
give the incumbent president a new mandate or to elect a new president.

Separate Opinions
PLANA, J.:

The narrow legal issue involved in these petitions is whether Batas


Pambansa Blg. 883 which provides for a "snap" election on February 7, 1986
violates the Constitution.
An examination of the Constitution, particularly Article VII, Section 9,
does not yield the conclusion that B.P. Blg. 883 is oensive to its provisions.
What is clear is that the Constitution does not prohibit the President from
tendering a resignation that is not immediately eective. Indeed, there is no
provision whatsoever regarding such kind of resignation.
Not being prohibited, a Presidential resignation in futuro is allowed. And
in such a case, the Batasang Pambansa is not obliged to sit and wait for the
actual vacancy to arise before enacting necessary legislation. That would be an
unreasonable and absurd interpretation of the Constitution, which is to be
eschewed.
Quite apart from the foregoing, there is a strong presumption that a law
is constitutional, which is fortied by the rule that all reasonable doubt should
be resolved in favor of its constitutionality. Hence, in assessing the
constitutionality of a law, "to doubt is to sustain." This approach is dictated by
a healthy respect of the courts for a co-equal department, the Legislature, and
the latter's assumed wisdom within the area of its competence. This principle
is doubly applicable as regards B.P. Blg. 883 which is the product of the joint
action of the executive and legislative departments. DTEAHI

Long ago, U.S. Chief Justice Marshall laid down an epochal standard in
evaluating the constitutional validity of a law: "Let the end be legitimate, let it
be within the scope of the constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are constitutional." (M'Culloch v.
Maryland, et al., 4 Wheat. 316.) That standard remains valid till now.
Accordingly, I vote to dismiss the petitions.

ESCOLIN, J., separate opinion:

In my view, petitioners failed to demonstrate that BP 883 clearly


contravenes any applicable constitutional provision. Besides, the issue posed
by these petitions is essentially political in character. And "when the issue is a
political one which comes within the exclusive sphere of the Legislative or
Executive Department of the government to decide, the Judicial Department
or the Supreme Court has no authority to determine whether or not the act of
the Legislature or Chief Executive is against the Constitution. What
determines the jurisdiction of the courts in such case is the issue involved, and
not the law or constitutional provision which may be applied". [Mabanag, et al.
CD Technologies Asia, Inc. 2016 cdasiaonline.com
vs. Lopez Vito, et al., L-1123, March 5, 1948, 78 Phil. 1, See concurring opinion
of Justice Feria].
It appears that the President himself sought the passage of the
challenged legislation, in his quest for a "new mandate" in an election that
will constitute "public judgment now on policies and programs of a
fundamental nature". The Batasan Pambansa, in the exercise of its plenary
power of legislation, has authorized the holding of the election. The positive
response of the people to the call for such an election has been overwhelming;
and the body politic itself has decided that only an election in this crucial time
could deliver the country from the clutches of subversive forces as well as the
grave economic problems plaguing the country.
Given this environmental circumstances and a statute not clearly proven
to be violative of the letter and the spirit of the constitution, this Court
attuned to the realities of the situation, should not prevent the electorate
from giving expression to their sovereign will.

RELOVA, J., separate opinion:

Article VII of the Constitution, Section 9 thereof, as amended, provides:


"Section 9.In case of permanent disability, death, removal from oce or
resignation of the President, the Vice-President shall become the
President to serve the unexpired term. The Batasang Pambansa shall by
law provide for the case of permanent disability, death, removal from
oce or resignation of both the President and Vice-President, declaring
what ocer shall then become President or the manner in which one shall
be selected. In case a vacancy in the Oce of President occurs before
the presidential election in 1987, the Speaker of the Batasang Pambansa
shall act as President until a President and a Vice-President or either of
them shall have been elected and shall have qualied. Their term of oce
shall commence at noon of the tenth day following proclamation, and
shall end at noon on the thirtieth day of June of the sixth year thereafter."
As held in Gamboa, et al. vs. CA, 108 SCRA 1, [o]ne of the ways of
terminating ocial relations is by resignation. To constitute a complete and
operative resignation of public oce, there must be an intention to relinquish
a part of the term, accompanied by the act of relinquishment and a
resignation implies an expression of the incumbent in some form, express or
implied, of the intention to surrender, renounce, and relinquish the oce and
the acceptance by competent and lawful authority. In Our jurisprudence,
acceptance is necessary for resignation of a public ocer to be operative and
eective, "otherwise the ocer is subject to the penal provisions of Article
238 of the Revised Penal Code. . . . ." (Emphasis supplied) In the light of the
abovecited case, actual vacancy need not exist on the day of the election.
When, therefore, the Batasang Pambansa, representing the people, enacted
Batas Pambansa Blg. 883 on December 2, 1985 and the President approved it
the following day calling for the elections on February 7, 1986, it, in eect,
accepted the resignation tendered by the incumbent on November 11, 1985
seeking a new mandate from the people "in an election that will assess, as
demanded by the opposition, the policies and program I am undertaking. Such
an election necessarily shortens my tenure . . ." (Annex B, G.R. No. 72923).
Thus, his term of oce was cut short by sixteen (16) months. As a
CD Technologies Asia, Inc. 2016 cdasiaonline.com
consequence, there is justication for the holding of an election before May
1987. Stated dierently, had the President not issued the letter-resignation,
dated November 11, 1985, the Batasang Pambansa was without authority to
enact Batas Pambansa Blg. 883, otherwise known as Cabinet Bill No. 7. But,
with the issuance of said letter-resignation, the Batasan and the President
were well within their constitutional powers to enact said law which would
give the people the chance to exercise its will through the electoral process
an attribute of sovereignty. TSHEIc

Further, there is merit in the contention of former Chief Justice Enrique


M. Fernando, who appeared as amicus curiae, that "if a resignation is
prompted by a President seeking 'a new mandate' in an election that will
constitute 'public judgment now on policies and programs of fundamental
nature,' by its own admission, the above constitutional provision does not
necessarily apply. What appears indubitable is that such a vacancy arising
from a voluntary act of an incumbent of the Presidential oce inspired by the
desire to seek a fresh mandate from the sovereign people is a novel situation
not contemplated by the framers of the 1981 amendments to the 1973
Constitution. . . ." (Summary of Points Submitted for the Consideration of the
Court) He submits that a legislative act suces because of the plenary
legislative power vested in the Batasang Pambansa.
Likewise, there is merit in the submission of the Solicitor General that
"2.The legislative power vested in the Batasang Pambansa is plenary and
subject only to such limitation as are found in the Constitution (see Article
VII, Section 1 of the Constitution; Vera vs. Avelino, 77 Phil. 192 [1946];
Arnault vs. Nazareno, 87 Phil. 29 [1950]; Occena vs. Commission on
Elections, 95 SCRA 755 [1980].
The interstices of the Constitution are within the power of the legislature
to ll up. What is not prohibited by the Constitution can be provided for
by the Batasang Pambansa. Indeed, it is conceded 'that the Congress of
the Philippines has a wider range of legislative eld than either the
Congress of the United States or a State Legislature' (Arnault vs.
Nazareno, 87 Phil. 29, 44-45 [1950].
"3.The calling of an election is essentially legislative in nature (Ututalum vs.
Commission on Elections, 15 SCRA 465 [1965]. All elections for President,
Vice President, members of the legislature and local ocials in our
country have been called through legislative enactments.
It cannot be doubted that enactment of Batas Pambansa Blg. 883 falls
well within the legislative authority of the Batasang Pambansa. The narrow
issue is whether the law violates the Constitution, particularly Section 9,
Article VII." (pp. 6-8, Consolidated Comment of the Solicitor General.)
Besides, supervening events have occurred since the passage of the law
on December 3, 1985 and there would be no turning back now. The Batasang
Pambansa passed the law and the President has approved it; but the Court
failed to issue a restraining order when the petitions were led on December
3, 1985 so as to maintain the status quo. Thereafter, the ruling political
parties (KBL and UNIDO) have elded their respective presidential and vice
presidential candidates in conventions and proclamations attended by
thousands of people. So much time, eort and money have already been
spent. We can take judicial notice of the fact that the overwhelming sentiment
CD Technologies Asia, Inc. 2016 cdasiaonline.com
and desire of our people is for the holding of the coming snap elections and
that they have tacitly consented and approved the law in question. At this
juncture, We cannot now deprive them of this right of surage. The two
coordinate branches of the government (legislative and executive) have
spoken. The judiciary should not be an obstacle to the people's desire to select
their Chief Executive in the forthcoming snap polls.
ACCORDINGLY, I vote to dismiss the petitions.

GUTIERREZ, JR., J., separate opinion:

Implicit in the republican nature of our State is adherence to the rule of


law. All acts of government must conform to the Constitution. Otherwise, they
have to be declared void.
As early as 1919, in the leading case of Villavicencio v. Lukban (39 Phil.
778, 787), this Court declared emphatically that "no ocial, no matter how
high, is above the law" and that "the law . . . is the only supreme power in our
system of government and every man who by accepting oce participates in
its functions is only the more strongly bound to submit to that supremacy and
to observe the limitations which it imposes upon the exercise of the authority
which it gives.'' IECAaD

Today, the above declaration warrants repeating. The law involved in


these petitions is no less than the Constitution, the supreme law of the land
enacted by the people in their exercise, in its highest sense, of sovereign
power. The legislative power vested in the Batasang Pambansa may be
employed only within the connes of constitutional boundaries. The President
is similarly subject to constitutional limitations and considering his solemn
oath, invoking the help of God, to "preserve and defend the Constitution," he
can execute only such statutes as do not conict with the supreme law of the
land.
In Mutuc v. Commission on Elections (36 SCRA 228, 234) this Court
declared:
"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 ocial or the lowest functionary, 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.
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 guard lest the restrictions on
its authority, whether substantive or formal, be transcended. The
Presidency in the execution of the laws cannot ignore or disregard what it
ordains. In its task of applying the law to the facts as found in deciding
cases, the judiciary is called upon to maintain inviolate what is decreed by
the fundamental law. Even its power of judicial review to pass upon the
validity of the acts of the coordinate branches in the course of
adjudication is a logical corollary of this basic principle that the
Constitution is paramount. It overrides any governmental measure that
fails to live up to its mandates. Thereby there is a recognition of its being
the supreme law."
CD Technologies Asia, Inc. 2016 cdasiaonline.com
I am constrained to reiterate the above basic principles because some
distinguished counsel have come forward with the strange proposition that
inspite of the clear circumvention by both the Legislature and the Executive of
express procedures mandated by the Constitution, "national interest" requires
that we should overlook the violations and dismiss the present petitions.
All members of this Court have taken an oath "na aking itataguyod at
ipagtatanggol ang Saligang Batas ng Pilipinas." We do not preserve and
defend the Constitution through a circumvention of its requirements and an
ignoring of its mandates.
The policy nature of their concerns and the passion of politics now
animating them may mitigate the inattention of the Batasan and the
Executive to scrupulous compliance with Section 9, Article VII of the
Constitution. We cannot enjoy the same luxury. I personally feel that during
these critical times, more than in happier days, we should insist on compliance
with the rule of law in its punctiliously authentic form. National interest and
political stability cannot be premised upon violations of our fundamental law.
Political expediency and the momentary, easily forgotten cry of the public are
too precarious and shifting to become legal foundations of a free and hopefully
prosperous society. Indeed, much depends on the forthcoming elections but
even more is at stake in the maintenance of constitutionalism upon which our
democratic government is founded and because of which popular and free
elections are held.
I nd no diculty in concluding that Batas Pambansa Blg. 883 is
unconstitutional.
BP 883 calls a special election for president and vice-president. It is
elementary in the law of public ocers that no valid appointment or election
to any public oce may be eected if the oce is not vacant. In the normal
course of events, the oce of the President becomes vacant upon the
expiration of the term of an incumbent. A regular election lls the vacancy.
But we are not concerned with a regular election. There is a call for a special or
an emergency election. TcSHaD

A special election may not be called for just any purpose or on any
occasion. A special election becomes necessary only when a vacancy is created
by death, permanent disability, removal from oce, or resignation. I cannot
accept the proposition that a simulated or ctitious vacancy is a "vacancy" as
understood in the law of public ocers. The vacancy must be real and in esse,
not a parody or shadow of the real thing. In the same way that death,
disability, or removal from oce must be actual and permanent before the
pertinent provisions of Section 9, Article VII of the Constitution may come into
play, so must a resignation be real and irrevocably permanent. Inspite of all
the learned arguments of distinguished counsel, I still fail to see how special
or emergency elections may be held for a position which is not vacant. Or how
the call for special elections can become the means of creating in the future
the now non-existent vacancy. Or how a vacancy can come about only after
special and emergency elections to ll that very same vacancy have already
been held. Credulity can be stretched only too far.
If the exigencies of national interest are pressing, now or in the near
future, and if the need for establishing political and economic stability is
imperative, that elections for a President and a Vice President can no longer
CD Technologies Asia, Inc. 2016 cdasiaonline.com
wait for 1987, the Constitution provides the remedy. The President can resign
and pursuant to Section 9 Article VII of the Constitution, the Speaker of the
Batasan shall act as President until the President and the Vice President or
either of them shall have been elected in the special elections called to ll the
vacancy thus created and shall have qualied. The muddling of the President's
term of oce shall also be obviated. By the same provision of the
Constitution, a new term of oce, which ignores the present xed term of the
incumbent, shall commence at noon of the tenth day following the
proclamation and shall end at noon on the thirtieth day of the sixth year
thereafter.
I nd Section 9 of Article VII clear and intelligibly simple. Any layman
reading it can easily grasp its meaning and understand the contingencies for
which it was intended. The words of Chief Justice Enrique M. Fernando
speaking for the Court in J.M. Tuason & Co. v. Land Tenure Administration (31
SCRA 413, 422) are appropriate:
"We look to the language of the document itself in our search for its
meaning. We do not of course stop there, but that is where we begin. It
is to be assumed that the words in which constitutional provisions are
couched express the objective sought to be attained. They are to be
given their ordinary meaning except where technical terms are employed
in which case the signicance thus attached to them prevails. As the
Constitution is not primarily a lawyer's document, it being essential for the
rule of law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be understood
in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates
the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Thus there are cases where
the need for construction is reduced to a minimum."
Since the Constitution itself provides an easily followed remedy, one
which any fairly literate citizen can readily comprehend, I do not see why the
Legislature and the executive should adopt a new fangled, perplexing, and
constitutionally inrm method of achieving a most desirable end. I believe
that all of us in Government must sincerely demonstrate our readiness to
abide by the terms and procedures of the Constitution even as we try to solve
serious national problems.
Neither can the special elections be premised on the accountability
provisions in Article XIII of the Constitution. Snap elections to make the
executive accountable to the people are for parliamentary systems. We have a
presidential form of government. When the 1973 Constitution came into force
and eect on January 17, 1973, it provided for a parliamentary system.
Section 13 of Article VIII provided that "the National Assembly may withdraw
its condence from the Prime Minister only by electing a successor by a
majority vote of all its members." Executive power was then exercised by the
Prime Minister assisted by his cabinet. The President was only a symbolic head
of state. The National Assembly could remove the Executive by majority vote
but the Executive could also have the Assembly dissolved and have the
questions on fundamental issues resolved by the people in so-called snap
elections. ITAaCc

Before this parliamentary government could be installed, we amended


CD Technologies Asia, Inc. 2016 cdasiaonline.com
the Constitution and returned to the presidential form. Any lingering traces of
parliamentarism carried over from the original 1973 provisions only serve to
make our government even more presidential. The dominance of the
Executive over the Legislature is much more marked now than in the 1935
presidential system. This being so, the accountability aspects of parliamentary
systems cannot be used to justify our legitimating BP 883.
I share the sentiments of the respondents and some of the petitioners in
their desire for ascertaining the people's will. But I submit that our basic law,
the act of the people which regulates the entire fabric of our government,
must be followed.
I am, therefore, constrained to dissent and to maintain my original vote
to enjoin the holding of elections under a statute I nd null and void.

NESTOR B. ALAMPAY , J., separate opinion:

The basic duty of this Court is restricted to the determination of


whether B.P. 833 calling for a special election is in accord with or in violation
of our Constitution. Diculty has been added to this task which the Court has
to accomplish because of the inconsistent and to an extent bewildering
positions taken and manifested by some of the petitioners during the hearing
of these cases. Members of the Court are puzzled as to what petitioners really
profess this Court should rightfully decree. Indeed, it would seem that what
was initially asked by certain petitioners in these consolidated petitions to be
done by this Court based on the grounds and reasons stated in their respective
petitions, such as to prohibit the respondent Commission from implementing
B.P. 833 on account of this statute's constitutional inrmity, have been now
abandoned by the same petitioners who but recently assailed the legality of
B.P. 833. The unconstitutionality of said statute is still being insisted upon but,
nevertheless, it is prayed that such governing and decisive factor be
disregarded, ignored or even circumvented and that this Court should
cooperate in the alleged unanimous will of the Executive and Legislative
departments of our country that there be an election for the Presidency and
Vice-Presidency of the nation next February, 1986, rather than in 1987.
It is my submission that the Court should detach itself from these
swirling and ckle attitudes that it has perceived and it should not be moved
by the rhetorical allusions to the alleged but unquantied desire of our people
to participate in an election which is at the same time contended to be not
sanctioned by and in conict with what is clearly provided for in our
Constitution. The rash and reckless suggestions suggested to the Court by
petitioners will only create and give rise to a dangerous precedent that could
erode the stability that inherently should attach and be reposed in the
Constitution. Appeals to what is claimed to be the present popular wish should
assume no signicance in the resolution of the primary issue. What our
Constitution decrees should be respected and followed.
It is my considered view that the special election on February 7, 1986,
called for pursuant to Batas Pambansa Blg. 833, does not meet at all the
specic condition that there should rst be an actual and existing vacancy
before a special election can be held to elect a new President before the
present term of the incumbent expires on May 30, 1987. Logic and simple
reasoning alone even without need of legal citations, will be suciently
CD Technologies Asia, Inc. 2016 cdasiaonline.com
persuasive to form a conclusion that no special election is necessary to ll up a
position which is not attended by a vacancy. The absence of an actual vacancy
negates and precludes acceptance of any unwarranted and expensive special
election. The searching analysis made by other Colleagues in the Court who
share with me in the above stated views make needless a repetitious and
extended dissertation on this matter. Absent an actual and real vacancy, the
holding of a special election cannot be given color of legality by the reference
to certain conditions attaching to the imputed vacancy but which conditions
most plainly would happen only after the election had already taken place and
with the position to be lled up by the election uninterruptedly occupied by a
legal occupant.
On this simple view, I readily conclude that Batas Pambansa Blg. 833
should be declared unconstitutional for being violative of the spirit and letter
of our Constitution. I vote, therefore, to declare Batas Pambansa Blg. 833
unconstitutional and consequently, to enjoin the respondent Commission on
Elections from conducting the unwarranted special election for President and
Vice-President on February 7, 1986. IaHSCc

PATAJO, J., dissenting:

Fully aware as I am that all laws are presumed constitutional and that
all reasonable doubt should be resolved in favor of their constitutionality and
only when the conict between any law and the Constitution is clearly
beyond reasonable doubt, should said law be declared unconstitutional, I
approach the issue of the constitutionality of Batas Pambansa Blg. 883 in the
context of what appears to be a popular clamor for the holding of a special
presidential and vice-presidential election on February 7, 1986.
The common grounds alleged in the petitions assailing the
constitutionality of said law are that the only instance that the Batasan can
call for the holding of an election before the expiration of the term of the
President in 1987 is upon the occurrence of the contingencies provided for in
Section 9 of Article VII of the Constitution, namely the permanent disability,
death, removal from oce or resignation of the President before the
presidential election of 1987 for in that case a vacancy in the Oce of the
President has been created triggering the mechanism for the calling of a
special election to ll up said vacancy together with the election of the vice-
president in accordance with the provisions set forth in Section 9, Article VII of
the Constitution and that Batas Pambansa Blg. 883 has in eect shortened
the term of the President elected in 1981 without going through the process
of amending the Constitution as the Batasan in enacting said law acted in the
exercise of its legislative powers and not as a constituent body. Petitioners
contend that the letter of the President recommending to the Batasan the
calling of a special election because of the need for the President to seek a
new mandate in an election that will assess, as demanded by the opposition,
the policies and programs being undertaken by him upon his undertaking that
he will irrevocably vacate the position of the President eective when such
election is held and the winner is proclaimed and qualied as president by
taking his oath of oce ten days after his proclamation is not a resignation
which would create a vacancy within the meaning of Section 9 of Article VII.
That there is no vacancy is evident from the fact that the President still
continues in oce until the assumption in oce by the winning candidate in
CD Technologies Asia, Inc. 2016 cdasiaonline.com
continues in oce until the assumption in oce by the winning candidate in
the special election instead of the Speaker who, under the provision of the
Constitution, becomes acting president in case of a permanent disability,
death, removal from oce or resignation of the President before the
presidential election of 1987. What Section 9, Article VII contemplates is an
actual vacancy and not a vacancy in futuro.
The Solicitor General defending the constitutionality of said law
contends that there is nothing in the Constitution which prohibits the Batasan
Pambansa in the exercise of its legislative plenary powers to call for the
holding of the special election for the Oce of the President on February 7,
1986 upon the undertaking of the incumbent President that he will
irrevocably vacate the position of president if an election is held for said oce
and the winner proclaimed and qualied by taking his oath of oce ten days
after his proclamation. The occasion for the holding of said special election is
the need of the incumbent President to seek a new mandate in an election
that will assess, as demanded by the opposition, the policies and programs
being undertaken by him.
It is my considered view that Batas Pambansa Blg. 883 is
unconstitutional.
While the 1973 Constitution, as amended, has adopted several features
of the parliamentary system, our government is still essentially a presidential
form of government and the term of oce of the President is for a xed term
of six years. Since the incumbent President was elected in 1981 for a term of
six years beginning at noon on the 30th day of June of 1981 and ending noon
of the same date six years thereafter when the term of his successor shall
begin, Batas Pambansa Blg. 883 had shortened the term of the President
without going into the process of amending the Constitution. The shortening
of the term of the oce of the incumbent President cannot be justied by the
action of the President agreeing to vacate his oce on condition that a special
election be held and the winning candidate for said oce is proclaimed and
qualied as president by taking his oath of oce ten days after his
proclamation. The President can only shorten his term of oce by
unconditionally resigning therefrom before its expiration in order that a
vacancy is created and the Speaker of the Batasan shall act as President and
the Batas Pambansa shall call for the holding of a special election to elect a
president and a vice-president in accordance with the provisions of Section 9
of Article VII of the Constitution.
aSTAIH

The letter of the President of November 11, 1985 recommending to the


Batasan the enactment of law calling for special election as there will be a
denite and inevitable vacancy in the Oce of the President which will pave
the way for the holding of said special election because of his undertaking to
irrevocably vacate the position of President eective only when the election is
held and the winner is proclaimed and qualied as president by taking his
oath of oce ten days after his proclamation does not create a vacancy that
will trigger the mechanism for the calling of a special election to ll up said
vacancy in accordance with the procedure set forth in Section 9 of Article VII.
Actually, the conditions mentioned by the President for calling of a special
election have not at all created a vacancy because he continues in oce as
president up to the assumption of oce of the president-elect. As petitioners
correctly contended, proof that there is no vacancy in the Oce of the
CD Technologies Asia, Inc. 2016 cdasiaonline.com
President as contemplated in Section 9 of Article VII is that he continues to
exercise the functions of the president instead of the Speaker who, under the
provisions of said Section 9, becomes acting president in case of a permanent
disability, death, removal from oce or resignation of the President before the
presidential election of 1987.
The contention of the Solicitor General that the provisions of Section 9,
Article VII do not preclude the Batasan Pambansa in the exercise of its plenary
legislative powers to call for the holding of a special election for the position of
president in a situation other than that contemplated in Section 9 such as the
need of the incumbent President for a new mandate is without merit. While it
is true that the power to call an election is exclusively a legislative
prerogative, such power cannot be exercised where its eect would be to
amend an express provision of the Constitution, more specically Section 5,
Article VII xing the term of the oce of the president and the vice-president
to six years. The power to dene the term of the president and vice-president
is not legislative but constituent and can only be exercised thru an
amendment to the Constitution in the manner provided for in the
Constitution. In eect, Batas Pambansa Blg. 883 has amended the
Constitution by an act of the Batasan as a legislative body, not a constituent
assembly and without the ratication of majority votes cast in a plebiscite.
". . . And we are asked to raise the power from the general legislative
authority by implication, to serve convenience and expedition in making
organic change. If it were conceded that an easier and quicker mode of
change is desirable, a concession not permissible, if the views of the
greatest writers on questions touching government under written
Constitutions are of force, a cannon of constitutional construction forbids
the implication of the authority, for it is the rule that where the means by
which the power granted shall be exercised are specied, no other or
dierent means for the exercise of such power can be implied even
though considered more convenient or eective than the means given in
the Constitution; and the Constitution gives special power to the
Legislature, and provides the means of exercising it, to eect needed
changes in the organic law. . . ." (Ellingham v. Dye, 178 Ind. 336; 99 NE 1,
15). (emphasis ours.)
Neither can the provision of the Constitution providing for accountability
of public ocers be invoked to justify the holding of a special election
contemplated by Batas Pambansa Blg. 883. Impeachment of the President and
the other constitutional ocers is the recourse for holding them accountable.
In short, a special election for the Oce of the President before the
expiration of his term in June of 1987 is authorized only on the occurrences of
the contingencies enumerated in Section 9 of Article VII, namely permanent
disability, death, removal from oce or resignation of the President. The
undertaking of the President to vacate his oce upon the qualication of the
president-elect in the presidential election of February 7, 1986 is not a
resignation within the meaning of Section 9, Article VII.
While I am not unaware of the popular clamor for the holding of the
"Snap Elections," a move initiated by the "opposition" and nally accepted by
the President in order to provide an opportunity to submit to the electorate
the acceptability of the President's program and policies of government even
before the expiration of his term of oce in June 1987, I believe the duty to
CD Technologies Asia, Inc. 2016 cdasiaonline.com
uphold the primacy of the Constitution is a responsibility that this Court
cannot shirk. For as said by the Supreme Court of Michigan speaking through
Cooley, J.: AIHECa

"Constitutions do not change with the varying tides of public opinion and
desire; the will of the people therein recorded is the same inexible law
until changed by their own deliberative action; and it cannot be
permissible to the courts that, in order to aid evasions and
circumventions, they shall subject these instruments * * * to a
construction, as if they were great public enemies standing in the way of
progress, and the duty of every good citizen was to get around their
provisions whenever practicable, and give them a damaging thrust
whenever convenient. They must construe them as the people did in their
adoption. If the means of arriving at that construction are within their
power." Bay City v. State Treasurer , 23 Mich. 499, 506. (emphasis ours).
In the same vein is what the Court said in ex rel Kinworthy v. Martin, 60 Ark.
343, 30 S.W. 421, that in construing Constitutions, Courts have nothing to do
with the argument ab inconveniente and should not bend the Constitution to
suit the law of the hour, quoting Greencasce vs. Black, 5 Ind. 557, 565. 11
Am. Jur. 659.
The constitutionality of Batas Pambansa Blg. 883 is a justiciable one and
not a political question which the Court must decide without equivocation.
I vote, therefore, to grant the petition and declare Batas Pambansa Blg.
883 unconstitutional.

In connection with the resolution of December 19, 1985 in the above-


entitled cases, Justice De la Fuente led a separate opinion in the Clerk of
Court's Oce on December 23, 1985:

DE LA FUENTE, J., separate opinion:

For the reasons well stated by my distinguished colleague, Hon. Lino


Patajo, I am inclined to share the view expressed in his dissent that B.P. Blg.
883 is unconstitutional. For it contravenes the intent, letter and spirit of the
succession provision section 9, Article VII of the Constitution. To my mind
the said statute would, if implemented, sidetrack or bypass the cited
constitutional provision designed to govern the selection of a successor in case
of vacancy in the oce of the President before the next regular election in
1987. A conditional or qualied "resignation" of the President which shall take
eect after the February 7, 1986 "special presidential election" and only upon
the proclamation and qualication of the candidate chosen by the electorate,
is not sucient ground or justication for a so-called "snap" election. In
explicit language, section 9, Article VII, provides for the constitutional formula
or device in lling the Oce of the President the moment it becomes vacant
by reason of the incumbent's "permanent disability, death, removal from
oce or resignation" at anytime prior to the end of his term in June 1987.
Such "resignation", as I see it, must be one resulting in permanent vacancy
actual or in esse, not merely prospective or inchoate or contingent as of the
time of the special presidential election, whereupon the Batasan Speaker shall
take over the vacated oce as caretaker President until a new President shall
have been duly elected, proclaimed and qualied by taking his oath of oce.
CD Technologies Asia, Inc. 2016 cdasiaonline.com
I have reached this conclusion after the hearings and upon due
consideration of the arguments and submissions for the petitioners and the
respondents, the former Chief Justice E. M. Fernando, and other legal
luminaries, especially those of former Vice-President Emmanuel Pelaez in an
article entitled "UNCONSTITUTIONALITY OF THE 'SNAP' POLL", 1/ which he
mentioned at the hearing as he gave his comments on the constitutional issue
before this Court. I reproduce herein-below the most pertinent portions of his
dissertation. 2/ I also nd the observations of Atty. Sedfrey Ordoez in the
petition and the reply led for the Liberal Party and former Senator Jovito
Salonga as well as those of Atty. Raul Gonzales, National Bar Association
President, who appeared and argued at the hearing, very persuasive enough
to overcome the doubts I had entertained earlier as to the alleged facial
unconsitutionality of B.P. Blg. 883. I am, however, unable to agree with
former Vice-President Pelaez and others who have stressed the
unconstitutionality of the law in question but urged, nonetheless, this Tribunal
to allow its implementation by taking into account "supervening events"
transpiring since the ling of the petitions and the "people's overwhelming
desire to hold" the "snap" election, the constitutional issue having "become a
political one, beyond its [this Court's] authority to enjoin."
While the practice followed under the Constitution and our election laws
has been to allow the President or an elective public ocial to submit himself
for re-election to the same oce without vacating it (remaining in oce until
the end of his term and during the election period), this generally refers to a
"regular" election, not to a special election called precisely to ll up an
existing permanent vacancy in the elective oce. The device or formula found
in Section 9, Article VII, having been so conceived and designed in detail to
meet a possible sudden vacancy occurring during a short period before the
regular presidential election in 1987, respect for the will of the Filipino people
who ratied the constitutional amendment in 1984 demands, I think, no less
than strict adherence to the afore-mentioned succession provision. B.P. Blg.
883 constitutes, plainly, a deviation from and evasion of that provision. SHDAEC

Finally, if the objective of the so-called "snap" election law was to enable
the President to ask the Filipino people for a vote of condence, the most
appropriate and adequate vehicle for that is a referendum as suggested by MP
Arturo Tolentino and former Vice-President Pelaez. A negative vote would
surely bring about a vacancy in the oce of the President, which can then be
lled up in accordance with the succession procedure provided by section 9,
Article VII. The other option, also suggested by both, is a constitutional
amendment incorporating the features of B.P. Blg. 883, to be submitted to the
people for ratication.

Footnotes

*Revision consists in the addition of paragraph 7 and statement that Melencio-


Herrera, J., took no part.

TEEHANKEE, J., concurring:

1/.Emphasis copied.
CD Technologies Asia, Inc. 2016 cdasiaonline.com
2/.Phil. Daily Express issue of Dec. 18, 1985.

3/.Times Journal issue of August 4, 1985.


4/.Idem, Annex "A".

5/.Bulletin Today issue of December 17, 1985.

6/.Bulletin Today issue of December 16, 1985, Jesus Bigornia.


DE LA FUENTE, J., separate opinion:

1/.Published in the November 23, 24 and 26, 1985-issues of Bulletin Today.


2/."The question of the constitutionality of the 'snap' election for President and
maybe Vice-President? on Jan. 17, 1986 proposed in Cabinet Bill No. 7 is a
very serious one. Grave doubts raised on its constitutional validity must be
resolved before any favorable action is taken on the proposal. Otherwise, the
political controversy now rocking the country could degenerate into irreversible
national disunity. Worse still, the rule of law in our country, the very foundation
of a free and democratic society, would be irreparably compromised.
xxx xxx xxx

". . . a severe blow on it at this time, like holding an unconstitutional presidential


election, could irreparably destroy it.
xxx xxx xxx

"The consequence of all this was: as ratied by the people, the present presidential
succession procedure, which was adopted together with other constitutional
amendments on Jan. 17, 1984, is denite, precise, and clear, leaving no room
for the Batasan to change or add to it one whit. No discretion whatsoever is
given to the Batasan to exercise its legislative power either to amend or to
ignore any portion thereof.

"The Batasan's clear duty is circumscribed solely to implement the presidential


succession formula now embodied in the Constitution and nothing more. Its
role in putting it into eect is purely ministerial, which in layman's language
means automatic, mechanical, not requiring the exercise of judgment. To test
the validity of the foregoing assertions, let us analyze Section 9, Article VII
the only section of the Constitution that deals with presidential succession
sentence by sentence.

'Section 9. In case of permanent disability. . . .


xxx xxx xxx

"The rst sentence presupposes that a Vice-President shall have been elected and
shall have qualied. It provides that in case the Presidency becomes vacant by
reason of permanent disability, death, removal from oce or resignation, the
Vice-President shall automatically become President. This is the 'spare tire'
concept of the Vice-Presidency which our people are familiar with and easily
understand from experience . . . The provision does not apply to the present
where we have no Vice-President.

"The next sentence provides that in the absence of a President and Vice-President,
the Batasan shall by law provided for a further line of succession. This is one of
CD Technologies Asia, Inc. 2016 cdasiaonline.com
only two instances where the Constitution authorizes the Batasan to take a
hand in the presidential succession procedure. The other one is found in the
fth and last paragraph of Section 9 above-cited, in case of death, permanent
disability or resignation of the Speaker.
"In other words, where the Constitution wants the Batasan to legislate on presidential
succession, it expressly says so. The clear implication is that, where the
Constitution itself mandates the precise procedure to the last detail, as we shall
presently see, the Batasan must keep out.

"The logic of this position is unassailable. If the Constitution were to permit the
Batasan the discretion to revise the presidential succession formula laid down
by it with meticulous exactitude or, as proposed in Cabinet Bill No. 7 [now, B.P.
Blg. 883], adopt an entirely new succession procedure, we would have a
situation where every Batasan could be tinkering with the matter. The inevitable
consequence would be the nullication of the procedure laid down by the
Constitution. The plain language of the Constitution's directive to the Batasan is:
you may supplement the line of succession, as in the two instances above-cited
where you are expressly authorized to do so, but you may not touch what is
already prescribed by the Constitution or, much less, replace it with another.

"The third and following sentences prescribe the succession procedure if a


permanent vacancy occurs during the term of President Marcos, that is, until
its expiration in June, 1987. The trigger mechanism which would set o the
events enumerated in these provisions is the occurrence of a permanent
vacancy a real, not a "paper" vacancy. This is sine qua non. Without the
occurrence of an actual and permanent vacancy , the presidential succession
procedure cannot come to life. With its occurrence, the events take place,
domino-like, automatically. The Batasan has no authority whatsoever to contrive
another cause, like a post-dated resignation to take place only if the President
loses in the (snap) election proposed in Cabinet Bill No. 7, to justify such an
election. This would nullify the succession procedure of the Constitution and
would be grossly unconstitutional.

"Let us, by re-reading the third and succeeding sentences, pinpoint the specics of
the succession procedure mandated by the Constitution.

"Upon the occurrence of a permanent vacancy in the Presidency during the present
term of President Marcos, the following events would take place:

1. The Speaker of the Batasan automatically becomes the Acting President. He shall
serve as such until President and Vice-President, or either of them shall have
been elected and shall have qualied. The language of the Constitution is clear
enough, requiring no explanation or elaboration.
2. On the third day after the occurrence of the vacancy, (a) at ten o'clock in the
morning, (b) the Batasan shall convene in accordance with its rules without
need of a call the constitutional provision itself makes the call in advance; and
(c) within seven (7) days enact a law, (d) calling a special election to elect a
President and Vice- President; (c) not earlier than forty-ve (45) nor later than
sixty (60) days from the time of such call.
"Please note how the Constitution goes into painstaking details. The convening of the
Batasan must be on the third day from the occurrence of the vacancy not
on the rst or second or fourth and so forth but on the third. Even the hour of
convening is set at ten (10) o'clock. The Batasan is given a deadline of seven (7)
CD Technologies Asia, Inc. 2016 cdasiaonline.com
days within which to enact a law calling for a specied election. The candidates
to be selected are specied the President and the Vice-President. The
Batasan is given very little leeway in xing the date of the election: it must not
be earlier than forty-ve (45) nor later than sixty (60) days after the call. This
minuteness of detail had a denite purpose, as we shall presently see.

"The provisions of the above-mentioned Section 9, Article VII, are contrary to all
traditional notions of constitution-making. The standard knowledge is that a
constitution must be couched in general terms, allowing the legislature to esh
out the constitution's broad outlines with details. As above-shown, however, the
above-cited Section 9 does not follow the traditions. The Constitution itself
supplies the details. It allows the legislature no leeway to do so.

xxx xxx xxx


"The foregoing circumstances reveal the clear intent of the Constitution: to prohibit
the Batasan from legislating at all on succession, except in the two instances
above-cited where the Constitution expressly authorizes it to do so.
xxx xxx xxx

"The 'law' calling a special election under the presidential succession provision, Section
9 of Article 7, is in eect, a measure sui generis wherein the Constitution has
acted both as the fundamental law of the land and as the legislature pre-
empting any claim of the Batasang Pambansa to any legislative authority to
change or replace the constitutionally prescribed procedure of presidential
succession.

"The claim that the Batasang Pambansa may now, in the exercise of its power of
general legislation, enact a law on presidential succession to call a special
election, under circumstances other than those enumerated in the Constitution,
thereby amending and short-circuiting the very precisely laid down procedure
in Section 9, Article VII on the subject, is utterly baseless. Neither Article VII (on
powers of the President and Vice-President) no Article VIII (on the powers of
the Batasan) of the Constitution grants it the authority claimed.

xxx xxx xxx


"On the basis of the foregoing detailed scrutiny of the pertinent constitutional
provisions, there can be no doubt on the Constitution's meaning the intent:
such a special presidential election during President Marcos' term must take
place and must be carried out strictly in accordance with the circumstances and
procedures specically laid out by the Constitution.
"Cabinet Bill No. 7, however, would openly defy the Constitution. Consider the
following:

(a) While Section 9, Article VII of the Constitution would authorize a special election
during the term of President Marcos only in case his oce is permanently and
actually vacant, the cabinet bill would authorize a "snap" election without the
occurrence of such a vacancy. (President Marcos' letter of "resignation"
categorically states that he will relinquish the Presidency only if some one else is
elected to and qualies for the position. Since the "resignation" would be
simultaneous with the assumption of oce or any person elected other than
President Marcos, there would actually be no vacancy.)

(b) While the Constitution would install the Speaker as Acting president from the
CD Technologies Asia, Inc. 2016 cdasiaonline.com
moment the vacancy occurs until a President or, in his absence, a Vice-
President, shall have qualied, so that, in eect, it is the Speaker, as Acting
President, who would oversee the election, the cabinet bill would brush the
Speaker aside, (and with him the Constitution), and allow President Marcos to
usurp the Speaker's role and oversee the election in which his own tness to
continue as President would be the crucial issue.

(c) While the Constitution specically directs the Batasan to meet on the third day
after the vacancy occurs to enact a law calling for the special election, within
seven (7) days, the cabinet bill would blithely ignore these specics.
"I f the proposal becomes a law and is upheld, then the constitutional provisions on
the same subject would be set aside. It would be a dangerous precedent . . .
xxx xxx xxx
"If we would but . . . hold uppermost in our minds the future of constitutional
government in our country, I believe there can be an accommodation which
would bolster rather than subvert the rule of law. In this connection, may I oer
the following suggestions, . . . :
"1. In his speech in Cebu on Nov. 15, 1985, the President stated, more or less, that a
'snap' election was crucial because his leadership had been assailed abroad and
it was necessary to show the world that the people were still with him . . .

"If this is the objective, rather than holding a 'snap' election in violation of the
Constitution, I would endorse the recommendation of Senator Arturo M.
Tolentino that the exercise appropriate for the purpose should be a referendum
on whether or not the President should continue in oce.

"If the vote is in the armative, the President would then have the necessary weapon
to counteract what he believes to be a campaign of destabilization against him .
..
"If the vote is in the negative, then the President should resign without delay. A
vacancy in the Presidency would then occur, in which case the constitutional
succession procedure would be operative . . .
"2. Another alternative would be to amend the Constitution. The Batasan should meet
as a constituent assembly and approve a resolution proposing an amendment
to the Constitution authorizing the calling of a special presidential election more
or less in the manner proposed in Cabinet Bill No. 7 or as may be agreed
between the majority and the minority in the Batasan. The resolution should
then be submitted to the people in a plebiscite . . .
"In either case, the Constitution shall have been shielded from further assaults on its
supremacy . . ."

CD Technologies Asia, Inc. 2016 cdasiaonline.com